Posted on 06/23/2005 7:30:08 AM PDT by Helmholtz
"No kidding. I don't care for the decision but come on, this is a local issue, not federal. People need to show up and vote in local elections.
We recently (~2 months ago) had a city council/referendum vote in Austin and about 18% turned out. The next day everyone of my coworkers are bitching aboutthe smoking ban but not a single one voted."
This will not work.
Controlling these sorts of national issues by astute local government never has worked, does not work, and is not going to start to work.
The reason it won't work is human inertia: the collective action problem, and it is invincible. In THEORY, all of those Polish aristocrats and burgers should have been able to agree, when they saw the Russians and Prussians both conniving at carving their country up, that they needed to be united against the threat. But that sort of close, continuing, perfect cooperation by so many disparate and otherwise uncooperative people for a sustained period of time is not possible. Poland disappeared from the map.
So, incidentally, did every single Celtic kingdom. The Celts had vast personal liberty and prerogative, and were very resentful and suspicious of any sort of organized authority. They resisted it manfully, when it was other Celts. This, of course, chopped them up, made them divided, resentful and completely unable to come together for sustained efforts against anybody else. And so they were ruled by Italians, Teutons, Greeks and Vikings, who could and did submit to kings.
There is a myth that great national problems can be worked out locally. People just don't work that way. Just try to set up something as simple as an Amway network with your closest friends and family and you will discover the very real limits on the ability to motivate people to do anything.
It takes great and stirring issues and great causes to really get people to move on anything.
Press down any issue to the lowest level of local government, and what you do is absolutely ensure that, nationwide, the largest monied interests and most organized national players will simply push each puny locality around. You also ensure that locally connected people and the local good-old-boy's network will sew everything up.
Who can take property is not a local issue.
It's a national moral issue. It says something about the character of the people.
Leave this to local government, and we know the answer for 99% of the United States: WalMart, Ford and Costco can take property, and so can the mayor's brother-in-law. 1% of localities will resist, but the national norm will be what labor conditions were like before there were any regulations or unions.
Are those state constitutional amendments? Can the Supreme Court overrule those? Because the overruled state law in the medical marijuana ruling.
Having read the opinion of Kennedy, and O'Conner, and gotten a little way through Thomas (he is excellent as always, and reading him shows me how STUPID Senator Reid is, saying that Thomas writes like an 8th-grader), I withdraw my previous comments regarding the scope of the 5th amendment.
This ruling is wrong, and we need to get a judge that will fix it on the Supreme Court. If only Stevens would retire.
I wonder what the publication date will be for our new Constitution, drafted by the Court(s).
OK, the highest court in the land just ruled that, instead of the preservation of inividual rights and freedom, our guiding principle and purpose will now be ensuring the greater good and fulfilling the official dream, as determined by our rulers.
I guess it's official, socialism is our new MO.
Thomas & O'Connor are correct: any Federal/Constitutional restrictions on emminent domain have been completely erased today.
This is a dark day in the history of America.
Well, just hope the surrounding communities don't need that water.
See the link in posting #186 for a much readable version, but here is a text version from the PDF (unfortunately, the pdftotext tool that I used to extract the text neglected to preserve its guesses at the paragraphs, so this is un-paragraphed.)
Cite as: 545 U. S. ____ (2005) O'CONNOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 04-108
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SUSETTE KELO, ET AL., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
[June 23, 2005]
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting.Over two centuries ago, just after the Bill of Rights wa s ratified, Justice Chase wrote: "An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, canno t be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean. . . . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presum ed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted). Today the Court abandons this long-held, basic limitation on governm ent power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reas on, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development taking s "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" f rom the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent. I Petitioners are nine resident or investment owners of 15 homes in the F ort Trumbull neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her famil y for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son liv es next door with his family in the house he received as a wedding gift, and joins his parents in this suit. Two petitioners keep rental properties in the n eighborhood. In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbul l neighborhood. Two months later, New London's city council gave initial approval for the New London Development Corporation (NLDC) to prepare the developme nt 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 rede veloping 90 acres of Fort Trumbull in order to "complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, enc ourage 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. Petitioners own properties in two of the plan's seven parcels--Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is slated for the construction of r esearch and office space as a market develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural organization) thoug h the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated, mysteriously, for " `park support.' " Id., at 345346. At oral arg ument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking. Tr. of Oral Ar g. 36. To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the F ifth Amendment prohibits the NLDC from condemning their properties for the sake of an economic development plan. Petitioners are not hold-outs; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC's proposed us e for their confiscated property is not a "public" one for purposes of the Fifth Amendment. While the government may take their homes to build a road or a r ailroad or to eliminate a property use that harms the public, say petitioners, it cannot take their property for the private use of other owners simply beca use the new owners may make more productive use of the property. II The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation." When interpreting the Constitution, we begin wi th the unremarkable presumption that every word in the document has independent meaning, "that no word was unnecessarily used, or needlessly added." Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: "the taking must be for a `public use' and `just compensation' must be paid to the owner." Brown v. Legal Foundation of Wash., 538 U. S. 216, 231232 (2003). These two limitations serve to protect "the security of Property," which Alexander Hamilton described to the Philadelp hia Convention as one of the "great obj[ects] of Gov[ernment]." 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ens ure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government's eminent domain power--particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority's will. While the Takings Clause presupposes that government can take private property without the owner's consent, the just compensation requirement spreads the cost of condemnatio ns and thus "prevents the public from loading upon one individual more than his just share of the burdens of government." Monongahela Nav. Co. v. United Sta tes, 148 U. S. 312, 325 (1893); see also Armstrong v. United States, 364 U. S. 40, 49 (1960). The public use requirement, in turn, imposes a more basic limi tation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public's use, but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg ional Planning Agency, 535 U. S. 302, 336 (2002) ("The concepts of `fairness and justice' . . . underlie the Takings Clause"). Where is the line between "pu blic" and "private" property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the publi c. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory flu ff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U. S. 439, 446 (1930) ("It is well established that . . . the question [of] what is a public use is a jud icial one"). Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of thin gs that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transf er private property to public ownership--such as for a road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles, 262 U. S. 700 (1923). Second, the sovereign may transfer private property to private parties, often common car riers, who make the property available for the public's use-- such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenge r Corporation v. Boston & Maine Corp., 503 U. S. 407 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30 (1916). But "public ownership" and "use-by-thepublic" are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have all owed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property i s destined for subsequent private use. See, e.g., Berman v. Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984). This cas e returns us for the first time in over 20 years to the hard question of when a purportedly "public purpose" taking meets the public use requirement. It pre sents an issue of first impression: Are economic development takings constitutional? I would hold that they are not. We are guided by two precedents about t he taking of real property by eminent domain. In Berman, we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deter iorated that, for example, 64.3% of its dwellings were beyond repair. 348 U. S., at 30. It had become burdened with "overcrowding of dwellings," "lack of ad equate streets and alleys," and "lack of light and air." Id., at 34. Congress had determined that the neighborhood had become "injurious to the public healt h, safety, morals, and welfare" and that it was necessary to "eliminat[e] all such injurious conditions by employing all means necessary and appropriate for the purpose," including eminent domain. Id., at 28. Mr. Berman's department store was not itself blighted. Having approved of Congress' decision to elimina te the harm to the public emanating from the blighted neighborhood, however, we did not second-guess its decision to treat the neighborhood as a whole rathe r than lot-by-lot. Id., at 3435; see also Midkiff, 467 U. S., at 244 ("it is only the taking's purpose, and not its mechanics, that must pass scrutiny"). I n Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, th e State and Federal Governments owned nearly 49% of the State's land, and another 47% was in the hands of only 72 private landowners. Concentration of land ownership was so dramatic that on the State's most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id., at 232. The Hawaii Legis lature had concluded that the oligopoly in land ownership was "skewing the State's residential fee simple market, inflating land prices, and injuring the pu blic tranquility and welfare," and therefore enacted a condemnation scheme for redistributing title. Ibid. In those decisions, we emphasized the importance of deferring to legislative judgments about public purpose. Because courts are ill-equipped to evaluate the efficacy of proposed legislative initiatives, we rejected as unworkable the idea of courts' " `deciding on what is and is not a governmental function and . . . invalidating legislation on the basis of the ir view on that question at the moment of decision, a practice which has proved impracticable in other fields.' " Id., at 240241 (quoting United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946)); see Berman, supra, at 32 ("[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation"); see also Lingle v. Chevron U. S. A., Inc., 544 U. S. __ (2005). Likewise, we recognized our inability to evaluate whether , in a given case, eminent domain is a necessary means by which to pursue the legislature's ends. Midkiff, supra, at 242; Berman, supra, at 103. Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: "A purely private tak ing could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void." Midkiff, 467 U. S., at 245; id., at 241 ("[T]he Court's cases have repeatedly stated that `one person's property may not be taken for the benefit of another private per son without a justifying public purpose, even though compensation be paid' " (quoting Thompson v. Consolidated Gas Util. Corp., 300 U. S. 55, 80 (1937))); s ee also Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (1896). To protect that principle, those decisions reserved "a role for courts to play in re viewing a legislature's judgment of what constitutes a public use . . . [though] the Court in Berman made clear that it is `an extremely narrow' one." Midki ff, supra, at 240 (quoting Berman, supra, at 32). The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society--in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that elimin ating the existing property use was necessary to remedy the harm. Berman, supra, at 2829; Midkiff, supra, at 232. Thus a public purpose was realized when t he harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. H ere, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm. Indeed, it co uld not so claim without adopting the absurd argument that any singlefamily home that might be razed to make way for an apartment building, or any church th at might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government's power to condemn. In moving away from our decisions sanctioning the condemnation of harmful property use , the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private u se, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public--such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit t o the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words "for public use" do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power. There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: "We deal, in other words, with what traditionally has been known as the police power." 348 U. S., at 32. From there i t declared that "[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear." Id., at 33 . Following up, we said in Midkiff that "[t]he `public use' requirement is coterminous with the scope of a sovereign's police powers." 467 U. S., at 240. Th is language was unnecessary to the specific holdings of those decisions. Berman and Midkiff simply did not put such language to the constitutional test, bec ause the takings in those cases were within the police power but also for "public use" for the reasons I have described. The case before us now demonstrates why, when deciding if a taking's purpose is constitutional, the police power and "public use" cannot always be equated. The Court protests that it does not sanction the bare transfer from A to B for B's benefit. It suggests two limitations on what can be taken after today's decision. First, it maintains a role for courts in ferreting out takings whose sole purpose is to bestow a benefit on the private transferee--without detailing how courts are to conduct that c omplicated inquiry. Ante, at 7. For his part, JUSTICE KENNEDY suggests that courts may divine illicit purpose by a careful review of the record and the proc ess by which a legislature arrived at the decision to take-- without specifying what courts should look for in a case with different facts, how they will kn ow if they have found it, and what to do if they do not. Ante, at 23 (concurring opinion). Whatever the details of JUSTICE KENNEDY's asyet-undisclosed test , it is difficult to envision anyone but the "stupid staff[er]" failing it. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 10251026, n. 12 (1 992). The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcin g. In this case, for example, any boon for Pfizer or the plan's developer is difficult to disaggregate from the promised public gains in taxes and jobs. See App. to Pet. for Cert. 275277. Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theor etically flawed. If it is true that incidental public benefits from new private use are enough to ensure the "public purpose" in a taking, why should it mat ter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a f avored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the r eason for a given condemnation, the effect is the same from the constitutional perspective--private property is forcibly relinquished to new private ownersh ip. A second proposed limitation is implicit in the Court's opinion. The logic of today's decision is that eminent domain may only be used to upgrade--not d owngrade-- property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. S ee Lingle, 544 U. S. __. The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public wi ll actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the m ost productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replaci ng any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Cf. Bugryn v. Bristol, 63 Conn. App. 98, 774 A. 2d 1042 (2001 ) (taking the homes and farm of four owners in their 70's and 80's and giving it to an "industrial park"); 99 Cents Only Stores v. Lancaster Redevelopment A uthority, 237 F. Supp. 2d 1123 (CD Cal. 2001) (attempted taking of 99 Cents store to replace with a Costco); Poletown Neighborhood Council v. Detroit, 410 M ich. 616, 304 N. W. 2d 455 (1981) (taking a working-class, immigrant community in Detroit and giving it to a General Motors assembly plant), overruled by Co unty of Wayne v. Hathcock, 471 Mich. 415, 684 N. W. 2d 765 (2004); Brief for the Becket Fund for Religious Liberty as Amicus Curiae 411 (describing takings of religious institutions' properties); Institute for Justice, D. Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Ab use of Eminent Domain (2003) (collecting accounts of economic development takings). The Court also puts special emphasis on facts peculiar to this case: The NLDC's plan is the product of a relatively careful deliberative process; it proposes to use eminent domain for a multipart, integrated plan rather than for isolated property transfer; it promises an array of incidental benefits (even aesthetic ones), not just increased tax revenue; it comes on the heels of a l egislative determination that New London is a depressed municipality. See, e.g., ante, at 16 ("[A] one-to-one transfer of property, executed outside the con fines of an integrated development plan, is not presented in this case"). JUSTICE KENNEDY, too, takes great comfort in these facts. Ante, at 4 (concurring o pinion). But none has legal significance to blunt the force of today's holding. If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court's rule or in JUSTICE KENNEDY's gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one. Finally, in a coda, the Court suggests that property owners should tu rn to the States, who may or may not choose to impose appropriate limits on economic development takings. Ante, at 19. This is an abdication of our responsi bility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitutio n (and a provision meant to curtail state action, no less) is not among them. * * * It was possible after Berman and Midkiff to imagine unconstitutional tra nsfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering a s a consequence. Today nearly all real property is susceptible to condemnation on the Court's theory. In the prescient words of a dissenter from the infamou s decision in Poletown, "[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will pro duce greater public benefits than its present use, no homeowner's, merchant's or manufacturer's property, however productive or valuable to its owner, is im mune from condemnation for the benefit of other private interests that will put it to a `higher' use." 410 Mich., at 644645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings "seriously jeopardiz[e] the security of all private property ownership." Id., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting). Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be r andom. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations an d development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founder s cannot have intended this perverse result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own." For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983). I would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse the judgment of the Supreme Court of Connecticut, and remand for further proceeding s.
"It is official citizens no long own property, you can only rent it, with the possibility of eviction at anytime."
Another perfect point. At least with land rents, known as property taxes, a person was safe in ownership of their property if they paid their land rents. Now, the Supreme Court jhas added a clause that says a person can be evicted at any time as well.
Please tell me what possible connection to this Bush has?
"the SCOTUS has now made it "legal" for government to seize your home and sell it to a private individual who promises to pay more TAXES on the land.
"
EXACTLY!!! A BIDDING WAR!!!
If the government wants to increase tax revenue, all they have to do is put your property up for bidding.
This is war against the people, against private property!
Are there no nations in the world other than the U.S. and France?
"Time to impeach and remove the euro-judges sitting on the U.S. Supreme Court."
Euro-judges?
Private property rights in Europe, at least in people's homes, are more protected than in the US.
No, this decision has nothing to do with European law. It's a purely American-made Frankenstein monster.
the usual suspects
We get our well water from an aquifer. Plenty to go around I would imagine...I hope.
In case noone else answered...
Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. Thomas, J., filed a dissenting opinion.
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