June 24, 2005

Has the Court "erased the Public Use Clause from our Constitution"?

That's what Justice Thomas wrote in dissent in Kelo v. City of New London, yesterday's Supreme Court Takings Clause case. Much of the criticism of the case that I've seen taps the stimulating rhetoric served up by Justice Thomas. Is the outcry justified?

You have to accept that government can take property. The power of eminent domain is ancient. What the Constitution requires that "just compensation" be paid to the owners and that the taking be for a "public use." This case was about what counted as a "public use." What was the questioned use in Kelo? As described by Linda Greenhouse in the NYT: it was "a large-scale plan to replace a faded residential neighborhood with office space for research and development, a conference hotel, new residences and a pedestrian 'riverwalk' along the Thames River."
The project, to be leased and built by private developers, is intended to derive maximum benefit for the city from a $350 million research center built nearby by the Pfizer pharmaceutical company.

New London, deemed a "distressed municipality" by the state 15 years ago, has a high unemployment rate and fewer residents today than it had in 1920.
Some people would like to say that the city should have had to run the development project itself for it to count as "public use." Should that be an absolute rule? No private developers? The public benefit is still there:
"Promoting economic development is a traditional and long accepted function of government," Justice Stevens said, adding, "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."...

Justice Stevens ... said the plan "unquestionably serves a public purpose," even though it was intended to increase jobs and tax revenue rather than remove blight.

He described the plan as "carefully formulated" and comprehensive. Sounding a federalism note, Justice Stevens said that state legislatures and courts were best at "discerning local public needs" and that the judgment of the New London officials was "entitled to our deference.".
So we're left wondering what would overcome this deference to the choices of the local political processes, but the strength of the dissenters, who would have adopted a hardline rule against private development, cautions against overreliance on judicial deference:
Both Justice O'Connor and Justice Thomas ... said the decision's burden would fall on the less powerful and wealthy.

"The government now has license to transfer property from those with fewer resources to those with more," Justice O'Connor said. "The founders cannot have intended this perverse result."

Justice Thomas, who called the decision "far reaching and dangerous," cited several studies showing that those displaced by urban renewal and "slum clearance" over the years tended to be lower-income minority residents.
It's interesting -- isn't it -- that the Court's liberals stressed "federalism," which the conservatives often praise, and the Court's conservatives stress the oppression of the poor by the rich, usually the plaint of the liberal.

The question is how much courts should involve themselves in reassessing the work of local government. If the local political processes result in spending tax money in an effort of this sort, replacing one land use with another, how much should courts scrutinize that choice? How much should local government need to pour its resources into litigation in order to get something done that elected officials believe is worth doing? Whatever you think of the wisdom of the project in this case, the standard the Court sets will affect all sorts of other cases.

Reading the various commentators, I was impressed by this post from lawprof Tom Merrill (at SCOTUSblog):
I think the case sends just about the right message. The Court is not prepared to adopt a per se rule against takings for economic development. But the amber light is flashing. Stevens and Kennedy seem to say that careful planning and lots of community input are important in sustaining the use of eminent domain for economic development. Kennedy ... warns that he may come up with a theory in the future which would allow him to go the other way -- so watch out! The Court is closely divided 5-4, which means another, more egregious example of condemn-and-retransfer might get struck down. So the message to state courts is: go ahead and use eminent domain for economic development, but please try to take property rights more seriously in the future. I think this is exactly the right message. it preserves federalism in this area, but tries to re-shape values and attitudes to be less casual about overuse of eminent domain, which can be a wrenching experience for people.
There is a message here for local government: if you go further than the City of New London did in Kelo, you will get tied up in litigation. Thus, the case doesn't unleash local government to condemn property willy-nilly and shift ownership around lightly. Merrill describes the kind of case that might turn that amber light red: "a case in which it looked like some politically unaccountable development authority had sold out to a private developer or big box store."

I'm not an expert in this area of law, but readers requested my opinion -- perhaps hoping I would join the outcry about the Court "erasing" the Public Use Clause. It seems to me the Court struck a reasonable balance between property rights and government power. The Public Use Clause still has meaning -- just not an absolute meaning. I realize that people who like to give constitutional language crisp meaning are disappointed, as you frequently are, but there are good reasons why the majority of the Court is drawn to these nuanced interpretations you find so frustrating.


DaveG said...

Pardon my naivete, but I'm left wondering why the same deference to local governance wasn't shown in Raich.

It all seems to arbitrary to me when taken as a whole.

Ann Althouse said...

Dave: Because the deference to governmental choice went to Congress, which passed the Controlled Substances Act that regulates marijuana all the way down.

goesh said...

Woe! Financial soothsayers abide'th there
O! They take'th a bold and brazen dare
now n'er more a man's castle his lair
they ignore'th the householder's smoldering stare
verily their life-long appointments We damn well can pare
Behold! like a red-headed step-child heir
granting 8 yrs. of power, like a President's share

Craig said...

As an aside, it seems that part of the strength of this ruling is the near split the Court ended up in. Is signalling a proper basis for ruling? I.e., would it be proper for a judge to change his vote (or to vote against the ostensible "outcome" he or she thinks is proper solely to send a vote suggesting his thoughts on future possibilities?

Craig said...

(Addendum: I say that not as a challenge to this ruling. I have not invested any substantial thought into my question; I am merely posing it.)

Ann Althouse said...

Craig: One way to answer your question is to ask whether a judge would admit that in his opinion. He wouldn't. Yet there is a way of deciding cases that make each case a kind of statement in an ongoing dialogue with other institutions. Here, the state courts could develop state constitutional law, state legislatures could pass statutes in response, city government has the role of making the next move, and so forth. And, of course, the President can take this into account choosing the next Supreme Court nominee, whom the Senate can grill over this very matter. The nominee, for his part in the dialogue, will say, unless he or she is very daring, "I cannot answer that question because it is an issue that may come before the Court."

Dad said...

Is there a reason the private developers could not buy the property from the rightful owners at a price that was acceptable to the owners? Is it that the price would be too high? Too bad.

Ann wonders how much the courts should involve themselves in reassessing the work of local governments. I would say they should involve themselves when the question is a constitutional one as in "Is it a public use?" Else, what's the constitution for?

Ann Althouse said...

Dad: The Court is just defining the term "public use." The New London project can certainly be seen as generally benefitting the public.

As to paying the homeowner whatever it takes to get him to move. Picture yourself as a taxpayer in the city with an urban development project of the highest quality - one that is even owned and run by the city (not by private developers). Now, the homeowner, knowing the importance of the project demands four times what he could get in the normal market if he wanted to sell. You like your tax money being used to pay the extortionate price the homeowner demands?

Dad said...

Ann, I think you are confusing public "need" with public "use". It might benefit the public, but is that the standard?

What extortion? The market goes up when demand goes up. That is how it works. You want it so bad? Pay for it. Developers should not be the only ones who can make a killing. It shouldn't be taxpayer money anyway, but the money of the project developers.

Bless Justice Thomas.

Ann Althouse said...

Partysan: You're not understanding. The reason this doesn't happen is that under the power of eminent domain the govt only has to pay "just compensation." I was responding to Dad, who was speculating about a better system in which you would get voluntary compliance from the homeowner through free bargaining.

Dad: As to what standard the Court came up with for what amounts to "public use," they left it vague, but said that what the city in this case did was good enough.

All you conservatives: why aren't you interested in federalism today?

Ron said...

Ann: so the extortion by a single individual for their home is bad, but when such strong-arm tactics are applied to whole communities by government it's not as bad? I can't wait until we get a court test of a purely political claim of "eminent domain." Bulldozer Gerrymandering becomes a temptation.

Dad said...

Ann, shame on you again. Telling partysan she doesn't understand is a put-down, and a misplaced one at that. She understands perfectly well that the system is rigged against the owner of the property being taken. To me, "just compensation" is what the market will bear. But I'm old-fashioned.

Matt said...

Thanks for honestly, authetically, and rightly cutting through the hysteria that I've seen both from the left ("Wal-Mart is coming to take your home!") and the right ("BIG GOV'MINT is coming to take your home!") on this case.

DaveG said...

>> All you conservatives: why aren't you interested in federalism today?

Because (IMHO) that was recently proven to be a somewhat foolish horse to bet on under Raich.

Again, I caveat this by stating that I am just trying to find some consistency in the two rulings that fits my admittedly naive world view, but it simply escapes me.

I don't think I would thrive as well in the ambiguous world of law as I do in the "it works or it don't" world of software development I live in.

Meade said...

"All you conservatives: why aren't you interested in federalism today?"

Meme of the week.

Ann Althouse said...

Dad: Both Partysan and you are using the word "shame" toward me, so don't lecture me about saying "you don't understand." That's rather ridiculous.

Matt: Thanks for the appreciation.

The issue, everyone, is how much to leave to the political processes and how much to lock down with constitutional limitations. It's hard to answer this and easy to disagree with the Court's attempt to set the balance. I understand the view of the people who want more done in the name of constitutional law (though I bet you turn around and complain about some of the limitations the Court imposes in the name of constitutional law). But you've got to see the forces that pull the Court to the center, toward moderation. I don't think it's a bad thing.

anthony said...

It seems to me the Court struck a reasonable balance between property rights and government power.

With all due respect, I beg to differ. Using the "careful planning and lots of community input are important in sustaining the use of eminent domain for economic development" test that Tom Merrill suggested the Supremes might want to see, the New London development has failed spectacularly. How much more community input do you want than turning out 2/3 of the city council on their asses?

I understand Tom Merrill's and your reluctance to cast in with what must seem like a mob frenzy over this issue, and wanting to follow the erudition of the majority opinion. However, the majority have opened a Pandora's box with their relativist stance on private property, which is saying that with the right soothsaying (centralized planning and perfunctory community input), the large investor has preferential property rights over the small investor. That cannot possibly be equal treatment under the law.

If this is a states' rights issue (which might put us on a messy collision course with recent interpretations of the interstate commerce clause, see the Savannah dispute between SC and GA), what is wrong with putting a moratorium on these economic development takings until all 50 states have weighed in with what they will individually do about the issue?

The economic moral hazards of this ruling are staggering to consider. The developers and city officials who desire the takings assume no risk whatsoever. If the promised increased tax revenue never materializes, then neither the developer nor city officials are held fiscally accountable. And the damage by the time everyone realizes the project's fiscal goals are a bust are not easily nor inexpensively reversible. In the case of New London, who foots the bill for the damage if Pfizer decides for example, to move their facility to Hyderabad, India, just five years after moving in, falling far short of even the most optimistic projections for a 15 year return on investment?

As noted elsewhere in the blogosphere, the enhanced economic value delivered by residents and businesses who pioneered the area and created a viable community that forms the basis for the desirability of the underlying land in the first place is reduced to a preferentially and not adversarially assigned value. Those who were planning to let their descendents sell out decades later because they realize the intrinsic value of property they own have their investment horizons abruptly cut short. To add insult to injury, they are paid present value of the property computed upon the assumption they wanted to sell when they are forced to sell by the taking, and not net present value computed to when they anticipated to sell (if such a future date could be established). This is just an arbitrage play by the developers who want to pull in the value creation timeline without having to put in the time and money to do it via the open market.

What is so important about following a master planned development instead of creatively working around holdouts (as the NLDC has shown they can for sites too politically sensitive to attack today), and patiently waiting and buying them out as time and funds permit, that justifies piercing the security of citizens' private property?

Mom said...

How can it be a "pull toward the center, toward moderation" to toss out the meaning that the term "public use" has carried through hundreds of years of legal precedent, and replace it with a brand-new definition? I'd use the word "radical" instead.

And I don't see why federalism should have anything to do with it. Yes, the particular government in this case happened to be a local one -- but the new and improved definition of "public use" the Court has invented in Kelo will work to the benefit of any level of government, including the largest. The impact of this decision has far more to do with the balance of power between government and citizen than it has with that between the Supreme Court and the condemning government.

Joaquin said...

I have practiced commercial real estate for over 28 years. I have been involved in large mall developments, mediun shopping center develoments and industrial developments of every size.
Never have I seen a legitimate developer with a legitimate project halted by an individual. Never have I seen a small property owner get "screwed" by a developer. In the REAL WORLD it doesn't happen. Actually the contrary is the norm.
Sure, some projects have been delayed because Mr. Jones didn't want to go along with the other 40 home owners in selling the assemblage but in the end, Mr. Jones gets everything he wants and usually much more.
With this new ruling, a developer now doesn't have to "bend-over-backwards" to meet the demands of a property owner who's property the developer wants. Let the Government do the work, give the property owner "fair market value" and be done.
In the REAL WORLD, this ruling blows a hole in individual property rights, shatters property valuations, and inserts government where none is needed.

Mister DA said...

All old news to us here in Michigan. Our state S Ct endorsed a similar expansive view of public use in Poletown Neighborhood Council v. Detroit, 410 Mich 616 (1981) and then saw the light, so to speak, in County of Wayne v. Hathcock, 471 Mich 445 (2004), explictly overruling Poletown. The decision was based on our state constitution's "public use" clause, so it's only of limited use, but still interesting.

Dad said...

Ann, please accept my apologies for saying "shame" to you and for lecturing you.

And thank you for the opportunity to comment on your blog. I enjoy reading your posts.

Ann Althouse said...

Dad: Thanks. I appreciate the comments and know people are distressed about the case.

Jean: You say "Federalism? The loss of individual property rights has nothing to do with Federalism," but of course the scope of constitutional rights affects federalism. Abortion rights limit what states can do regulating abortion. Free speech rights limit local experiments regulating pornography. Eighth Amendment rights restrict the states' use of the death penalty, but not as much as they would if they were interpreted as broadly as some people think is appropriate. Equal protection rights have been constrained to permit experiments by states with affirmative action programs. Establishment clause rights have been construed narrowly enough to permit cities to try voucher programs for schooling. There's an obviousl interplay between federalism concerns and the interpretation of rights!

If you generally support federalism, that means you like the idea of freeing state and local government to set their own policies in response to local ideas about how things ought to be done. You like decentralized decisionmaking.

And it's important to note that federalism includes the decentralizaed approach to rights: the state constitutions can be used as a basis for finding constitutional rights.

Joaquin said...

dad - "just compensation" is NOT what the market will bear.
Just compensation is what a third party decides the property is worth. There is a HUGE difference my friend.

Matt said...

Yes--there's both "liberal" federalism and "conservative" federalism. I'm a "Liberal Federalist" in that I believe that the Tenth Amendment gives states strong powers to "set the bar higher" than the federal government does (for instance, setting a state minimum wage higher than the federal standard) provided that the federal standard is adhered to as a uniform minimum. I'm a traditional liberal on federal power, though--for instance, I think Raich et al were rightly decided, even though I disagree with the policy being implemented through federal law. That, to me, is where the rubber hits the road, legally--do we uphold policies we dislike and reverse policies we like when they're legal/illegal respectively, or do we just fly off into result-oriented jurisprudence? I don't particularly care for the policy choices upheld in Raich and Kelo, but I think they were wholly legal choices for the respective governments to make, and that's the question at stake--not the wisdom of the policies.

P_J said...


As a layperson, I have perhaps a simplistic question: How does this ruling square with the 4th Amendment right to be secure in our persons, houses, papers and effects against unlawful searches and seizues? Isn't the right to be secure in our homes (property rights) one of the most basic foundations of freedom?

Re: Federalism. This is a Consitutional issue. I think New London has over-reached here and crossed a line drawn by the 4th Amendment, so the very question itself is whether the state or town can enact a law that appears to violate the 4th Amendment. The majority opinon punted by saying "We trust local officials to decide what's appropriate under the 5th Amendment."

Greg D said...

Why is it that the only time "Liberal" Justicesclaim to believe in Federalism is when stomping over explicit Constitutional rights (2nd Amendment, or this case)?

Building a road is "public use". Building a government building is "public use". Letting a rich person build a home where two poor people's homes used to be isn't public use, unless they're plannign on letting us come use their bathrooms when we're in the area.

Let's put it this way:

If the actions being contemplated in Kelo are "public use", what isn't?

When everything is "poblic use", the term has no meaning.

DaveG said...

Well, as they say on their web site:

The City is presently in the midst of a period of economic revitalization with significant development initiatives underway in the State Pier, the Downtown and the Fort Trumbull areas. The most notable result of these efforts is the recent completion of Pfizer, Inc.'s $300 million dollar Global Research and Development Headquarters on the City's waterfront. This is what New London is all about.

Emphasis added.

Sean Sirrine said...

From O'Conner's dissent:

"In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to “complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually ‘build momentum’ for the revitalization of the rest of the city.” App. to Pet. for Cert. 5"

Hmmm, that doesn't sound like a transfer from A to B? It doesn't matter if you use public purpose instead of public use when you're goal is to benefit B.

G said...


It is immaterial whether the court has left open the possibility of ruling differently in other cases. Kelo virtually assures that few lawyers will take a similar case without getting paid up-front while informing their clients that a win is unlikely.

Kelo also places residential property at the low end of the food chain as it is never more cost efficient than other types of property. Residential property provides less tax revenue and increases costs since commercial property never has school age kids.

jeff said...

It will be interesting to see if cities all the sudden start salivating over possilbe "public uses" that can be put to non-property tax paying charities and religious organizations (aka: churches).

Dad said...

Dax, Just compensation is a price that is agreeable to both buyer and seller. I see nothing "just" about a price that is forced upon the seller of a piece of property. The market can decide.

Matt said...

The market does decide (or is at least the basis) in an eminent domain case. Appraisers are utilized and the goal is to figure out market value of the property when condemned. In most cases, they're able to come to an agreement without resorting to ED. Where it becomes an issue is where for some reason (sentimental value, general obstreporousness) the property owner refuses to accept an offer based on market value as determined by an appraiser/through an appraisal proceeding. It's most certainly not "I decide what your property is worth, no appeal."

Joaquin said...

dad - Not in this case.
You have a third party deciding "just compensation" How is that between a buyer and seller?? In this scenario, there is no communication, let alone negotiations between buyer and seller. How can the seller realize his highest price??

Chew on this:
Property values are determined by comparable sales. Property taxes are based on property values/comparable sale prices. If sales prices are being artficially set by a third party and not the legitimate market place, what is the impact on future tax revenues?

Jim Gust said...

The deference in Raich was to federal politicians, the Congress, ignoring the democratic expression of the will of Californaians. Absent a federal player in Kelo, the Court is now ready to defer to local politicians. Deference to politicians is the commonality in the two cases.

Would anyone's opinion be influenced by the fact that here in Connecticut the Governor and former mayor of Bridgeport are in jail on corruption charges, and the former mayor of Waterbury is in jail for criminal activity uncovered during another corruption investigation? Our local politicians are not to be trusted with power such as the Surpeme Court is handing out.

This case was about enforcing a constitutional right that local and state officials trampled upon, and the Supreme Court has said, "Be my guest. You have no recourse in the federal court." This should not stand.

When you see Rockefeller Center in NYC, you will see that the building had to be redesigned and rebuilt around one holdout who refused to sell. That was the right result, notwithstanding the other public benefits and the costs to the private developer.

Steven said...

Ann -- The clause says "public use", not "public benefit". The public in Kelo may very well benefit from an alternative private use of the land, but that doesn't change the fact that the land in question will be being owned and used exclusively by private entities, not the public in general or the public as constituted into a government.

Matt -- As any modern economist will tell you, generalized market price is a (useful) fiction; the actual market price of something is no less than the minimum the owner will sell it for, no matter what his neighbor will sell an identical good for. And sentimental value is value just like scarcity value or use value. Still, since "just compensation" is enshrined in the Constitution, an appraised "market value" is the best we can do, so for purposes of law it will have to do.

Matt said...

But "this price or else" is not how ED works (at least in theory--I understand that in practice, it can be different story)--you're free (and to an extent, encouraged) to challenge the valuation placed on the property by putting in your own evidence (typically an appraiser) as to why the valuation is incorrect.

And the Rockefeller Center example conflates the questions of whether the power exists and whether the power is rightly exercised in a particular case (as folks on both sides have done in this debate).

Mom said...

dax, I think you and Dad are actually in agreement. Dad is talking about what he thinks "just compensation" OUGHT to mean, not what it does mean as a legal term of art. He thinks that compensation is only just, or fair, when a buyer and seller decide together what a piece of property is worth. This, if I'm correctly reading your comments, is also what you think. But you are correctly pointing out that as a legal term of art, "just compensation" means the amount that is paid to a homeowner as a result of the appraisal and valuation process in eminent domain proceedings, which is not necessarily the same amount that a free buyer and a free seller would agree upon. I think you are both actually on the same side in this fight!

And Matt, it is not true that the market decides what property is worth in an ED case. The appraisers who will determine ED compensation use "comparable" sales of other properties in similar neighborhoods to do so. But unless the appraisers use only "comparables" that were also in the path of big, lucrative development projects -- not likely, from what I've read about New London -- the "comparable" values won't take into account the most important factor in the market equation: demand.

The private-market value of the condemned properties went up the minute they were targeted for development, because the developer expects to make money on them. In a private market, that added value would be reflected in the selling price, because the seller would be free to hold out for a price that fairly reflects the worth of that property to that developer. In the ED process, on the other hand, the value determined from "comparables" necessarily leaves out the increased demand on the targeted properties, and results in an artificially depressed valuation. The real-world value of those properties DID increase. But only the developer, and not the seller, will get a chance to profit from that increased value.

That's what makes this whole thing pernicious. The valuation process in ED proceedings was set up to protect taxpayers from having to pay excessive prices for land that the government needs for public purposes. But in this case, the process is being used to help private parties profit at the expense of the original owners. That is not how the market is supposed to work.

Joaquin said...

mrswhatsit - Oh, I agree with dad. Although it may have been awkward, I was trying to reenforce what he said.
Reading contracts on Friday afternoon and blogging don't mix. Much like Quaaludes and Subarus.

anthony said...

There just so many bad angles to this ruling I find it irresistable to point out some other aspects not getting a lot of play in commentary.

"Public use" is most assuredly not preserved when private corporate rights are asserted on the developed property. You can bet your last dollar that the property developed from a takings will be aggressively secured with private rights to protect the interests of the property owners. No First Amendment protection on the developed property for example, because the private interests of the developer trumps that. I can peacefully assemble and protest against an anchor store in the development in front of say, the county courthouse. But woe unto me if I do the same in front of the development within their property line. This is a conflation of the term "public use" into "public benefit", with the added perversity that no one ever seems to notice that government property somehow always escapes this treatment.

Furthermore, small businesses evicted through eminent domain takings are compensated solely for the property, and not the business. Relocation expenses of the business, and lost revenue due to the move through disruption and re-establishment, are not mandatory components of just compensation, yet any businessman would vehemently argue that the effort it took to create those business relationships associated with that location are just as tangible as say, royalty rights are to an author.

Jim Gust said...

Today's Washington Post:

"Land Ruling Favorable for D.C.

Supreme Court decision will provide leverage for stadium deal."

I think that sums up the likely economic impact of Kelo pretty well.

Ann Althouse said...

G writes: "It is immaterial whether the court has left open the possibility of ruling differently in other cases. Kelo virtually assures that few lawyers will take a similar case without getting paid up-front while informing their clients that a win is unlikely."

I think it's GOOD if the Court has a resolution of the problem that discourages litigation. The important thing to recognize is that people structure their transactions with an eye toward avoiding what would provoke litigation. Here, knowing the Kelo situation and hearing the warning about what would go too far, we will try to structure our projects so that they do not contain the factors that will make litigators think it is worth it to drag us through the courts. The case sets the incentives. You don't have to actually litigate for the rule to have its effect.

So the case gives some incentive not to be abusive. Admittedly, it doesn't prevent all abuse, but no rule of law ever does, and if a different rule had been set in the case, different parties would find strategies for abuse.

Harkonnendog said...

Thanx for your thoughts on the case. Like many others I am disappointed that you agree with it.
I feel it is a power grab by and for the judiciary. Kennedy basically said that "public use" is some amorphous thing that can't be defined but he, and other wise judges like him, will know it when they see it.
Rulings like this, rulings that empower judges and make the law more ambiguous, are wrong.
This may be a dumb analogy, but I'll use it anyway... Whenver they make a new NFL rule people talk about how it will help offenses or make injuries less likely or whatever... but I judge the rule primarily by whether or not it asks the officials to make a judgement call. Judgement calls make things worse in the NFL. They lead to inconsistency- in effect to different rules being used at different times and for different people. This applies to laws as well, I think.
Asise from that- this ruling will have terrible consequence. First, the fact that you don't know what a judge will decide does NOT act as a warning to developers or local councils... it favors the rich- it favors those with more to lose. Rich people can chance litigation poor cannot.

Beyond that, it takes less than 20k to bribe a county councilman- and if you've bribed one you've bribed them all since they generally support each other's bribes. So for 20k of risk a developer can reap millions! I haven't heard of judges being bribed much but the mere threat of litigation will make most poor (blighted) homeowners give up without a fight.
I don't know what kind of fantasy world Kennedy lives in- where developers don't use intimidation or bribe local officials.
Anyway, thanx again. And thanx for providing a comment section for me to express the frustration, too.

G said...


I don't see why a finding for Kelo wouldn't have limited litigation as much if not more than the way the court did find. As far as the "amber light turning red" as Merrill states, his and Justice Steven's assurances are both vague and unconvincing.

What I, and many others, find objectionable about the Kelo decision is its interpretation of the words "public use". What you call nuance, I see as self-serving semantics. "Public use" simply does not mean "public benefit", neither now nor in the 1700s. If the framers had meant "public benefit" they would have said it. The Constitution was not written to make governing easier, but harder, and twisting the definitions of the words does no one a service.

I fully realize that, occasionally, adjustments for changes that occur due to the passage of time are necessary. In my opinion, this is not one of those occasions.

Ann Althouse said...

G: You're right. The clear rule proposed by the dissenters would be even more effective in curtailing wasteful litigation. And I am not a huge proponent of the majority's approach over the dissenters'. I just object to the hysteria over the case. If it had gone the other way, I would have been fine with that as well. The dissenters may very well have had a better position. All I'm saying is, it's not so bad. Don't flip out about it.

G said...


You are so considerate, but don't worry, it'll take more than a Supreme Court decision to flip me out. ;) I pretty much try to find the humorous side of things.

In fact, I wrote a rather tongue-in-cheek post about Kelo yesterday. Of course, it's probably not as funny as I think it is.

Another Obituary

Sloanasaurus said...

Did you see the email posted on the corner:

The quickest way to reverse Kelo is to find some conservative town in Utah somewhere to shut down an abortion clinic in order to make room for a Wal-Mart.

Kelo will turn out to be one of the dumbest decisions in the Court's history.

Xrlq said...

"All you conservatives: why aren't you interested in federalism today?"

Oh, I dunno, but I have a sneaking suspicion it might just be Because. This. Case. Was. Not. About. Federalism. Granted, a true blue, dyed in the wool, more-federalist-than-thou type might argue that the whole incorporation doctrine was wrong, and that we should go back to the days when none of the Bill of Rights applied to the states. Or, I can even see a more nuanced version of that theory, where one might argue that in this case, the doctrine of *selective* incorporation wasn't quite selective enough, the takings clause being one of the provisions which, as Justice Thomas wrote of the Establishment Clause in the Newdow case, "resists incorporation." But the Supreme Court appears to be unanimous in the view that the takings clause *does* apply to the states, and the general population overwhelmingly assumes that it always did. Once we all concede that that same takings clause applies to federal, state and local governments alike, what "federalism" argument is left? Surely you're not arguing that the meaning of the phrase "public use" ought to depend on which level of government is condemning whose land?!

Jim Gust said...

Ann, I'm puzzled by your "Who is John Galt" attitude toward this case. This is constitutional jurisprudence according to Orwell, or perhaps Lewis Carroll--"private will mean public whenever I say so." How does that encourage respect for the law, or the rule of law? The Court got to this point through a long series of tiny steps, each looking reasonable by itself. The public wasn't paying attention, but it is now, and this final result is just obviously wrong to anyone with common sense.

My biggest disappointment is that no one joined in Thomas' dissent.

Ann Althouse said...

John Ryskamp: You accidentally double-posted, so I deleted the extra post. But, on the substance of your post, there is zero chance of this happening.

Ann Althouse said...

To all the commenters who are outraged by Kelo: I stand by my original post. I really wish you'd take the time to read Justice Stevens's opinion. He has to deal with a whole line of precedent. If you would read about these cases and make the effort it takes to understand them, you would see why the outcome reached in this case was expected and moving to a different position would have been surprising and difficult. Also, read the text of the oral argument to get some insight into the problems with Kelo's claim. You're expressing a lot of outrage and pointing to basic arguments, but you aren't taking the trouble to understand the other side. For this reason, your arguments are not even beginning to get into the area where you could persuade me.

Ann Althouse said...

Not sure how we shifted over to talking about Raich, but the reason an individual rights argument wasn't used there was that it had already been rejected in earlier cases.

Ann Althouse said...

"Frankly, I don't think you have a very good grounding AT ALL in the Constitution; trying to be witty doesn't make up for this."

Well, please don't tell the University of Wisconsin.

Ann Althouse said...

Note to all: Being disrespectful to me is not a good strategy for getting me to respond.

Ann Althouse said...

Mycin: I am not trying to be condescending, and I don't know if you've read through all the comments here, but some of the know-it-all attitude from commenters who lack legal training is a tad provoking!

Xrlq said...

Kathleen B:
"I just don't see how anyone can say that a case where a federal court defers to the findings of a local government is 'Not. About. Federalism.' or maybe I don't understand what Federalism is."

The latter. Federalism is about the idea that certain enumerated powers are entrusted to the federal government, and others are left to the states. It has nothing to do with local governments, which are not part of the "federation" to begin with, being allowed to run roughshod over a constitutional provision that clearly applies to them. Nor did the Supremes attempt to draw any "federalist" distinction anyway. If the federal government were so inclined, it could condemn your house tomorrow to make room for a new Wal-Mart in full reliance on Kelo. That's why the "federalism" defense is 100% phony.

Xrlq said...

Ann, I'm not sure it's about a know-it-all attitude so much as a difference of opinion over how much weight stare decisis should be entitled to. I for one have little doubt that Kelo was decided "correctly" according to the line of cases that preceded it, as surely as Roe v. Wade, Brown v. Board of Ed, and every other landmark case was decided "incorrectly." Some of us lawyers - and almost all nonlawyers - think that where the competing principles of "because we said so" and "because the Constitution itself says so" collide, the former should give way to the latter.

Ann Althouse said...

Xrlq: There are so many cases that could be cited to refute your statement about what federalism is. To name a few :National League of Cities -- note the word "Cities" -- one of the most prominent federalism cases, Printz v. United States (local officials commandeered to enforce gun regulation), City of Boerne v. Flores.

You yourself are displaying this know-it-all attitude, informing Kathleen about how wrong she is. And in fact, you're the one that's wrong. Kathleen was being modest.

Finally, the Kelo Court did talk about federalism. Stevens wrote:

"Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U.S. 598, 606—607 (1908) (noting that these needs were likely to vary depending on a State’s “resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people”)....

"We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,22 while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.2"

Xrlq said...

"Oh really. so you are really going on record as saying that the Feds trampling on local governments does not impact Federalism. Really?"

Of course it would. I just don't think that enforcing a constitutional prohibition against either a state or, in this case, a subdivision of thereof, is "trampling" anything. The only genuine federalism issue here - whether the takings clause of the Fifth Amendment should even apply to state and local government - was decided a long time ago. Incorrectly, IMO, but incorporation is what it is.

"Your defense about local vs. state is just splitting hairs. here is the definition of Federalism I found at dictionary.com: 'A system of government in which power is divided between a central authority and constituent political units.' says nothing about states but not cities in there."

Of course it doesn't, because the dictionary definition is a generic one. There can be federations of cities; the United States just doesn't happen to be one of them. In this instance, as the country's name suggests, the only constituent political unit is the state.

Ann, I never denied the Supremes dropped the "f" word in Thursday's decision. Having only skimmed the case, I didn't know they if they had or not, and am terribly surprised that they did. That doesn't take away from my greater point that dicta aside, the case did not "attempt to draw any 'federalist' distinction" in determining the case. They didn't rule that local and state governments are exempt from the Fifth Amendment, nor even that they should be given more deference than the federal government should.

That's why the federalism argument is phony. It's not about expanding the rights of states, or even subdivisions of states, against the federal government. It's about expanding court deference to all levels of government, particularly the legislatures. In that sense, it could almost be characterized as a separation of powers case, but as a federalism case?! Not hardly, unless you really think the case only applies to state and local government.

Ann Althouse said...

Xlrq: Well, you gave two reasons why the case had nothing to do with federalism and you are just wrong to say that federalism analysis in American constitutional law has nothing to do with local government. It doesn't matter how a dictionary defines the word. What counts is how the Court uses the term in the cases. The second reason has some merit and I've already written somewhere in these comments about the point. But you're right that if the Court defines an individual right, it limits the federal government too, but the notion of narrowly defining rights to give states room to experiment with their various policies is frequently found in the case law. Certainly, with respect to eminent domain, cities are in the forefront, and the narrow interpretation of the right is done in the context of thinking about what cities ought to be able to do, particularly on this point about economic development being a proper public use.

Ann Althouse said...

Scott: Read Stevens's opinion. He simply does not go as far as that point Scalia got Horton to admit he supported. Nor does he go as far as O'Connor's Ritz-Carlton idea. It's just NOT in the majority opinion!

Xrlq said...

"Well, you gave two reasons why the case had nothing to do with federalism and you are just wrong to say that federalism analysis in American constitutional law has nothing to do with local government. It doesn't matter how a dictionary defines the word. What counts is how the Court uses the term in the cases."

Close, but not quite. What they literally say is great, but what really matters in the end is the rule of law, as we all know it will be applied. Printz is a bad example because it wasn't a problem of commandeering local governments per se; it was about the federal government commandeering all or part (in this case, part) of a state. If local government had any "federalism" type sovereignty of its own, we'd be seeing Printz-like cases every time a state legislature "commandeers" local governments within its own jurisdiction, or every time Congress "commandeers" the District of Columbia. In both cases, all the same policy arguments are there, particularly in large states, but the federalism issue is not.

@nooil4pacifists said...

Ann, I agree with you.

I'm a full-on supporter of property rights. But I think Kelo properly decided--and indistinguishable from Midkiff.

Unrestricted eminent domain would be unconstitutional. But Kelo demands no such thing. The Constitution doesn't compel Federal Courts to substitute their judgment for elected municipal officials.

Kelo is a pro-conservative, pro-Federalism decision that bolsters a bit of judicial deference commonly confined to the legal endangered species list. Not all developers are scum; not every Mayor's on the take--if the are, call the cops and vote against crooked councilmen next November. Isn't that what we tell liberals?:

"[T]he fact remains that state and local governments have a fair amount of power under our constitution to enact either. We often tell folks on the left that not every social ill should be cured by the courts, and that should apply no less when "conservative" interests are at stake."

Connecticut has the right to be socialist--and I have the right not to live in Connecticut.

I'm quite conservative--which is why I'm puzzled that Kelo critics on the Right sound like anti-Wal-Mart kooks. Look to state and municipal government, not federal courts, for redress. And don't assume the sky is falling.

Ann Althouse said...

Xrlq: Your point simply goes to the fact that the cities are political subdivisions of the state in the view of federal law (which is all the Supreme Court talks about and all the US Constitution is).

Ann Althouse said...

Carl: Thanks for writing. Nice to have some suppot around here!

G said...


I can't argue that the decision follows precedent that has been set over the last hundred years or so.

I am left wondering, however, which other parts of the Bill of Rights you would have us "look to state and municipal government, not federal courts, for redress".

You and Ann seem concerned about the visceral reaction to Kelo and it worries me as well, but I think it might be a mistake to dismiss it as an overreaction. It may also be a mistake to presume it is only about Kelo.