Posted on 02/15/2016 5:20:59 PM PST by SeekAndFind
Antonin Scalia, the conservative legal giant who died on Saturday at age 79, will be remembered for his outspoken views on legal issues ranging from abortion to gun control. Scalia's fierce opposition to eminent domain abuse is also worth remembering.
In 2005 the U.S. Supreme Court heard oral arguments in Kelo v. City of New London. At issue was that Connecticut municipality's desire to bulldoze a working-class neighborhood and hand the razed land over to a private developer working in cahoots with the Pfizer corporation. The idea underlying the city's scheme was that if people were forced out of their homes, their vacant properties could be put to more profitable purposes, thereby swelling the city's tax coffers.
The problem with this approach is that it violates the original meaning of the Fifth Amendment to the U.S. Constitution, which says that the government may only take private property for a public use (and it must pay just compensation when it does). Taking property from one private party and handing it over to another private party, by contrast, is plainly inconsistent with all traditional notions of public use, a reality the Supreme Court itself acknowledged back in 1954, when it upheld an eminent domain "urban renewal" taking on the grounds that it served a "public purpose," a far more permissive, and therefore government friendly, concept than public use.
During the February 2005 oral argument in the Kelo case, the lawyer for New London urged the justices to give government officials the broadest leeway possible in eminent domain disputes.
But Justice Scalia was not feeling so generous. Under your theory, Scalia asked the lawyer, "you could take [private property] from A and give it to B if B is richer, and would pay higher municipal taxes, couldn't you?"
"Yes, Your Honor," the lawyer conceded.
"For example," interjected Justice Sandra Day O'Connor, "Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?"
"Yes, Your Honor, that would be okay," the lawyer conceded again. In other words, because private property can almost always be put to a more profitable purpose, the government can effectively take any private property it wants for any "development" scheme it happens to cook up. So much for the text of the Fifth Amendment.
In the end, of course, Scalia and O'Connor were outvoted. Liberal Justice John Paul Stevens, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, gave the government all the leeway it needed to kick people out of their homes and wipe their neighborhoods off the map. "The disposition of this case," Stevens announced, "turns on the question of whether the City's development plan serves a 'public purpose.' Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field."
The Kelo case has been in the news again recently thanks to the presidential campaign of Republican Donald Trump. In Trump's oft-stated view, Kelo is a "wonderful" decision that should be respected and emulated. Trump is also known for trying to personally profit from Kelo-style land grab.
Trump's position is of course totally anathema to the position of Justice Scalia, who once went so far as to compare Kelo to Dred Scott. Perhaps when the next Republican presidential debate rolls around, one of the moderators will consider asking Trump why it is that he prefers the legal views of John Paul Stevens over those of Antonin Scalia on this matter.
RE: I think posting things like this right after Scalia’s death is despicable.
I disagree. I believe this is HONORING Scalia’s legacy of protecting our rights under the constitution.
You are comparing a public utility to a private parking lot. Please.
I’m sure you would, however, your motive was to trash Trump. You won’t admit it - but it’s the truth. Scalia can be honored in many ways, but, this isn’t one of them.
I agree, unless it is claimed by eminent domain. Then you get market value.
RE: I wish they would build a casino or highway of ball field on top of my house. I would get 2-3 times the market rate.
Well good for you. But what if a private citizen refuses to do that, do you support government taking of his land to build the casino? ( notice I did not use the word — highway because THAT would be for public or civic or defense use.
RE: I’m sure you would, however, your motive was to trash Trump.
I’ll tell you my motive — my motive is to discuss the issue of EMINENT DOMAIN and the LIMITS of government in using this power.
If Ted Cruz supported it ( and I am a Ted Cruz supporter ), I would still post this article ( which would then be Antonin Scalis vs Ted Cruz )
RE: Scalia can be honored in many ways, but, this isn’t one of them.
Again, disagree. What better way of honoring the man than to discuss an issue he so superbly wrote about and defended when he was alive?
I similarly posted his defense of the second amendment in another thread. This would be no different.
Notice all the usual trumpeters aren’t jumping on this thread. There is no defense of this action.
Hey, ED is constitutional, and I’d love for someone to give me 3x what my property is worth. I’d sell in a heartbeat. We aren’t to be attched to material things on this earth. And, where would this country be if ED wasn’t used when taking land from the Native Americans? OF course, they sold out for firewater and trinkets, but, that’s beside the point. We’d have no roads, hospitals, or anything else - so, if this is your issue - then let it lie and let Scalia RIP.
Trump wasn’t the first one to make an offer. Get your lies straight. And, who cares? That stupid boarding house is still standing. This is a non issue.
RE: Hey, ED is constitutional,
It sure is but are there NO LIMITS to what the government can take?
Is the taking of private property for casino or hotel development regardless of the private property owner’s consent the proper role of government to exercise its power?
Allow me to translate: I can't defend Trump's schmuckiness for wanting to displace the little people from their private property for his personal gain, so I'll just jabber and blabber like it doesn't matter. A highly intellectual argument for Trump, n'es pas?
Is Dubya running again? I thought there were laws about the number of terms a president can serve.
You have the script but you need the punctuation- all caps, bold letters, exclamation points. Throw in a few “WOW’s” and “GREATS”
Trump tried to force people(including an elderly woman) out of their homes in Scotland because their homes spoiled the view of the property he was developing.
Cities should have the right to redevelop dilapidated sections of town without being stopped by one stubborn homeowner.
The fact that a private developer will be the one to actually execute the cities plan, doesn't bother me a bit. Is the city suppose to build everything itself?
I guess not - we have very few rights left anymore, due to our elected officials. It’s an indificual decision if one wants to sell or not, and is this really an issue or is it because you found another way to bash TrumP? I think it’s the latter, because you don’t really care about Scalia or Ed for that matter. I’ve seen your many, many, anti-Trump posts, and this is just more of the same. So, now I’m done talking with you. There is nothing left to say except that your motives weren’t over an issue at all.
That is not factually accurate. It is an ABSOLUTE FACT that Donald Trump supported, and continues to support, the Kelo decision. This is not debatable.
In regard to the issue over the widow - the reason he did not take her land is because a judge put a halt to it. https://www.youtube.com/watch?v=SmM4ZBoppNQ&list=PLJcbhHQDR9da0H3-Qs-7WEEj6tam9vlh3&index=4 Your argument is akin to arguing that an arsonist is not guilty if someone comes along and puts the fire out before it has a chance to damage or destroy the property.
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