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Eminent domain on the move
June 27, 2005 6:40 AM Subscribe

The Supreme Court broadly expanded eminent domain in Kelo V. New London last Thursday. The city of Freeport, TX wasted no time. City attorneys are preparing legal documents to seize three pieces of waterfront property from two seafood companies for construction of an $8 million private boat marina.

Coming to a city near you soon?
posted by Steve_at_Linnwood (129 comments total) 1 user marked this as a favorite

I agree with Steve, this is some seriously flawed legal reasoning from my view. Eminent domain should be used for things that are prima face the people's -- roads, schools, public hospitals. It shouldn't be used to enrich the friends of politicians, and this ruling is pretty much carte blanche to do so.

As we can see. The article says that it will "increase tax revenue" and "reinvigorate the city" -- but what about the pockets of real estate developers who are getting, um, reinvigorated?! Won't somebody think of the billionaires? If the marina was going to be a public park and public marina (with some retail shop / restaurants), I'd be much less of a whiner.
posted by zpousman at 6:46 AM on June 27, 2005

Haven't you heard? America is now an ownership society. There are no rights more important than property rights, unless of course there is someone richer and better connected that wants your property, then your property rights mean nothing.
posted by clubfoote at 6:51 AM on June 27, 2005

Anthony fucking Kennedy has no nuts.
posted by Kwantsar at 6:54 AM on June 27, 2005

I actually read an interesting analysis of the Kelo decision the other day, although I'll be damned if I can remember where. Apparently O'Connor's dissent reads much like a majority opinion that had to be changed at the last minute.

Seriously, though, does anyone in this country think this was a good idea? (Except for the last few holdout Communists and anarchosyndicalists who think all property is theft anyway.)
posted by darukaru at 6:59 AM on June 27, 2005

I find the ruling flawed too, and the escalating use of taxpayer dollars to support private industry bothers me a great deal, but I nonetheless wonder how decisions on public use would otherwise be made--by the courts in every instance? I find it deeply amusing that conservatives want to leave abortion and other such privacy rights matters up to state and local lawmakers, but cringe at leaving decisions about property rights up to them. Democracy is OK in some instances, but not in others. In any case, what would be the alternative in dealing with these cases. Maybe they could be handed over to some quasi-judicial authority, an administrative court or public use board or something? Or should people lobby for state laws and constitutional amendments (local govts. still derive their authority from the states in the U,S.), and local ordinances, that would lessen any adverse effects here?
posted by raysmj at 7:00 AM on June 27, 2005

Seriously, though, does anyone in this country think this was a good idea?
Stevens, Kennedy, Souter, Ginsburg, and Breyer all do.
posted by Steve_at_Linnwood at 7:06 AM on June 27, 2005

I hear this little problem can be easily fixed with yet another large tax cut for corporations and the wealthiest among us. On the brighter side, this will make the purchase of politicians by the moneyed elite even cheaper as they provide housing for them on the Duke Stir yacht!
posted by nofundy at 7:08 AM on June 27, 2005

I find it deeply amusing that conservatives want to leave abortion and other such privacy rights matters up to state and local lawmakers, but cringe at leaving decisions about property rights up to them.

I think it's a pretty consistent constitutional philosophy, actually. I bet you can find plenty of honest conservatives who loathe the erosion of privacy, for example, but admit that they see no "right to privacy" in the constitution and would thus support a constitutional amendment securing such a right.

And the reason that Kelo pisses the conservatives off so much is that it boggles the conservative mind that "public use" means "government can take land from whom it chooses and give it to others whom it chooses," because that interpretation defies both literalism and common sense.
posted by Kwantsar at 7:08 AM on June 27, 2005

When I heard the Supreme Court decision, I thought, well, that sucks, but maybe it'll just be an isolated abuse. I was wrong.
posted by dial-tone at 7:09 AM on June 27, 2005

Look, the Supreme Court doesn't make the laws they only rule on them. You can agree with the law or not, but the SCOTUS only upheld what Washington and Hamilton introduced into the Constitutional Convention some 215 or so years ago. It's called the General Welfare clause. Jefferson wigged (or is that Whigged) out about it, but it still passed based on the premise of checks and balances.

So like the law or hate it, don't blame SCOTUS, blame George Washington.
posted by Pollomacho at 7:10 AM on June 27, 2005

In any case, what would be the alternative in dealing with these cases.

It seemed to be working just fine before. You know, how like when you buy a house, someone can't just take it and build a casino?

Seriously - the courts don't need to decide whether a casino represents a "public good" or not. It's not about how good it is, it's about whether it really belongs to the public.

I suggest that after this marina gets built, people simply move in to the area and treat it like public campgrounds - hey, it's gotta be public property, right?

The ruling is absurd, and it's only a matter of time before two equally-well-connected real-estate developers start stepping on eachothers' toes, trying to buy out eachothers' property for "the public good." That'll get this ruling overturned/clarified mighty quick.
posted by odinsdream at 7:12 AM on June 27, 2005

Some great analysis of the decision--and questions regarding the "bright line" separating abdication of judicial responsibility from, I gather, judicial activism--at Slate. That online site generally sucks now, but Dahlia Lithwick is still on the payroll and one of two analysts featured here, so . . .
posted by raysmj at 7:12 AM on June 27, 2005

odinsdream: If this sort of thing wasn't going on before, it wouldn't have ended up in the courts. This is a byproduct of the public-private partnership, which the public has tolerated and lawmakers of all ideological and partisan stripes have actually promoted over time--especially since the mid-1980s.
posted by raysmj at 7:14 AM on June 27, 2005

Addendum: The public-private partnership is, however, definitely the product of a more conservative era in American politics.
posted by raysmj at 7:16 AM on June 27, 2005

and it's only a matter of time before two equally-well-connected real-estate developers start stepping on eachothers' toes,

This is the primary reason that opponents are up in arms about it. At first I could take some solace in a quote from someone on NPR (sorry, I missed the name) who stated essentially that most politicians use eminent domain as a last resort since its not a very popular thing to do and that we shouldn't worry. I'm worried.
posted by KevinSkomsvold at 7:19 AM on June 27, 2005

America sucks more every day.

I can't wait to leave.
posted by wakko at 7:21 AM on June 27, 2005

Well I am absolutely disgusted by this. It seems like the U.S. government is always trying to solve its problems by building marinas - from the halls of Montezuma to the shores of Tripoli. These endless criminal invasions by the United States Marina Corps simply entrench the American thassalocracy, but when Godzilla comes where do you think he'll start his rampage of terror? IDIOTS.
posted by the quidnunc kid at 7:24 AM on June 27, 2005

Seriously - the courts don't need to decide whether a casino represents a "public good" or not.

That's not what happened here. The legislature decided what was public good, the court upheld that it was constitutional.

The ruling is absurd, and it's only a matter of time before two equally-well-connected real-estate developers start stepping on eachothers' toes, trying to buy out eachothers' property for "the public good."

That will only happen if they are both empowered to do so by local, state or federal legislative action. The only thing that is absurd about the ruling is that people are blaming the Supremes for what is clearly in the law and has been for over 200 years, but no one has taken any steps to fix those laws in all that time. Jefferson wrote in 1800, complaining when the federal government seized the Roosevelt copper mine in New Jersey to transfer ownership to a separate private owner who would mine more copper, yet when his party was in power did they make any amendments to the constitution about this? His party even wussed out about restricting the clause (among other things) in the Constitution in order to get the Bill of Rights. Not that I'd rather lose the Bill of Rights, but this fight is old, and it has always been lost by those opposed to eminent domain.

America sucks more every day.

Yes, especially since they upheld 200 year old laws? They could and did always do this throughout history. You should be glad that the Supremes actually took this case, that means it actually got that much closer to being changed!

PS - Where are the MeFi socialists? Isn't anyone going to defend the people's right to seize the means of production?
posted by Pollomacho at 7:26 AM on June 27, 2005

Several of the beachfront suburbs around my city have been trying to start very similar marina projects for years, with basically identical rationale. Apparently affluent boat owners, unable to resist anything shiny and new, will come flocking, magpie-like, to the town's economic rescue.

Even waving aside the considerable issue of abusing eminent domain for private projects, there's still the issue of whether such a project can possibly work.

How many boaters are there, really? Don't they all have marina arrangements already? What's going to make them switch to a new facility? If they do switch, then won't that have a negative impact on the old marinas? Has anyone considered that the soaring price of fuel - which was not exactly a trivial cost for boating even in the 90s - might dampen expansion of the boating crowd?
posted by Western Infidels at 7:27 AM on June 27, 2005

Oh, and yes, I do know that Jefferson et al. did manage to ensure just compensation in the Bill of Rights, of course the government who is seizing the property gets to decide what is just compensation.
posted by Pollomacho at 7:29 AM on June 27, 2005

Anthony fucking Kennedy has no nuts.

but he'll soon have yours for the public good.
posted by quonsar at 7:29 AM on June 27, 2005

Here in Washington, D.C., the ruling has immediate implications for construction of a proposed baseball stadium:

In addition to its national repercussions, the court's decision removed a possible obstacle to the District's plans to build a baseball stadium along the Anacostia River waterfront and to redevelop the Skyland Shopping Center in Southeast -- a project Williams said could generate 300 jobs and $3.3 million in tax revenue.

In this context the use of eminent domain simply seems like a "tool" that allows the state to obtain things for less than their market value.
posted by coelecanth at 7:29 AM on June 27, 2005

The combination of 'thassalocracy' and 'Godzilla' just made my damn day. Props to you, Quidnunc.
posted by Haruspex at 7:30 AM on June 27, 2005

odinsdream: A rather infamous and large-scale example of this sort of government buying of property under eminent domain law occured in the Detroit of the early 1980s--the destruction of the Poletown neighborhood for the building of a General Motors plant.
posted by raysmj at 7:33 AM on June 27, 2005

Look, the Supreme Court doesn't make the laws they only rule on them.
posted by Pollomacho at 7:10 AM PST on June 27

Well, that's the problem, isn't it?

The Supremes made law with this opinion, which is not within their authority to do. They took a statute and two hundred years of precedent and added to it and expanded it. That is the very problem with this opinion. Read the dissents and most of the analysis of the opinion. This was an act of judicial activism.
posted by dios at 7:36 AM on June 27, 2005

We're dealing with it in memphis too. The director emailed us Friday it wouldn't matter for us (because of some other, equally pertinent rulings from SCOTUS). Still, people are worried.
posted by jmgorman at 7:37 AM on June 27, 2005

First, let me say I agree with the majority that this was the wrong decision. But, I've thought some about this case, and in my mind (and perhaps my mind only), the case boiled down to the federal government deciding a case of individual vs local government. What's the Supreme Court seemed to be arguing was less about eminent domain, and more about who should limit the power of local governments, the people or the feds? Now all things being equal, I'd say that the people should limit the power of local governments. So in that sense I agree with the SC decision. BUT, I feel even stronger that the feds should take the role of ensuring individual rights remain sacrosanct from government and corporations. In that regard, the ruling was a disaster.
posted by forforf at 7:38 AM on June 27, 2005

Pollomacho, if you can't see a difference between the feds seizing a copper mine for a national interest as major as copper production and a city seizing a persons *home* for a piddly private interest like a Walmart or some such thing, then I worry about you. The right to one's home and private property goes back way more than 200 years. . . There's nothing so basic to our system of laws than that. A commercial enterprise is a real stretch of the term "public use." The need in the community for its services has to be much more extraordinary than low prices.
posted by BrandonAbell at 7:39 AM on June 27, 2005

grrr s/What/What's
posted by forforf at 7:39 AM on June 27, 2005

What's good for Pfizer is good for America.
posted by fleacircus at 7:39 AM on June 27, 2005

How ironic is it that this happened in the town of Freeport?
posted by Faint of Butt at 7:41 AM on June 27, 2005

PS - Where are the MeFi socialists? Isn't anyone going to defend the people's right to seize the means of production?

This isn't socialism. It's mostly about the reallocation of petty-bourgeois property to the bourgeoisie. Socialism would be about collective worker ownership, not switching which portion of the ruling class owns something.
posted by graymouser at 7:42 AM on June 27, 2005

What's the problem? We'll just relocate the seafood business owners, give them gambling licenses, and a hundred or so years later we can say that we should all just get over it.

Oh, sorry. I forgot, this is the worst thing the government's ever done. THEY TERK OUR JERBS!
posted by XQUZYPHYR at 7:45 AM on June 27, 2005

dios: Care to explain that further? It's judicial activism because you think it is? As noted, this sort of thing has been going on before, and I'm glad to see conservatives upset now--but why weren't they before, in cases like the quote-unquote urban renewal in Poletown?
posted by raysmj at 7:45 AM on June 27, 2005

Where are the violent conservative militias when you need them the most?
posted by craniac at 7:45 AM on June 27, 2005

raysmj: dios explains himself quite well if you read the text of his comment before the assertion. The judiciary adding to law (or changing the spirit of it) through their rulings is the definition of judicial activism. Really doesn't need much more explaining than that I don't think.
posted by BrandonAbell at 7:53 AM on June 27, 2005

How are they adding to law, when--as I've pointed out--this sort of thing was going on already? The City of Detroit was sued in the Poletown case, but the neighborhood was still razed. Were there conflicting rulings in the lower courts in such areas? Does anyone know? In any case, I don't see how this changes the spirit of existing rulings, without being told why.
posted by raysmj at 7:57 AM on June 27, 2005

I want specifics, in other words.
posted by raysmj at 7:58 AM on June 27, 2005

BrandonAbell - please don't shoot the messenger, I did not take a stance on the law, I only stated that the laws have been in place for centuries.

In the Roosevelt mine example, there was no copper shortage, the federal government simply believed that a new owner would do a better job and would mine more copper, therefore they voted to seize the mine and transferred the ownership to another private owner. They used the excuse of public interest. In the marina case, the legislature is defining the demolition of a blighted area as public good.

For another great example of destruction of blighted areas for the "public good" see here. In this case tracts of blighted land were bought up, demolished and the poor were concentrated in a high rise. the rest of the land went to private development of upscale apartments.

The Supremes made law with this opinion

What law did they make? Here's what they ruled:

Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U.S., at 245, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals."

[This] Court long ago rejected any literal requirement that condemned property be put into use for the … public.

the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.

Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized.

Yeah, obviously they really changed things up here by relying on the Court's past judgements on cases like this.
posted by Pollomacho at 7:59 AM on June 27, 2005

Awesome post, S@L. Thanks.

Yay "development". This isn't the only land grab inspirired by this new ruling, either.
posted by loquacious at 8:00 AM on June 27, 2005

Seriously, though, does anyone in this country think this was a good idea?

Small-town mayors with big-city pretensions, corporations who don't want to pay a premium for privately owned land, and real estate developers. Also, upper-middle class people who would rather have a casino or nice hotel by the waterfront rather than working-class residents who aren't fit to join the ranks of the "beautiful people."
posted by deanc at 8:01 AM on June 27, 2005

What a warm pile of dog excrement this is.

Anthony fucking Kennedy has no nuts.

I don't know who Anthony Kennedy is, but this just rings true. Well said. This is the comment is the corn in the dog excrement--it has some nutritional value.

Except for the last few holdout Communists and anarchosyndicalists who think all property is theft anyway

Who are you talking about? How typical of these times, that we should conjure fictional people with ludicrous views, and allow these figments of our imagination to shape our debate. Get a life you loser.

Look, the Supreme Court doesn't make the laws they only rule on them.

Excuse me you moron but how about you take a minute to look up the meaning of "case law." While from a uselessly theoretical standpoint what you say has bearing, it is, and has always been the fact, that the courts determine how a law is applied in real life, and since I guess you are a real human being like the rest of us, this "case law" comprises a real portion of the law, as it is.

The only thing that is absurd about the ruling is that people are blaming the Supremes for what is clearly in the law and has been for over 200 years, but no one has taken any steps to fix those laws in all that time.

If you can't stop your bootlicking support of the current government for long enough to realize that the ability for the government to steal your stuff and give it to some corporation is new, then why should any credit be given to anything else you say? Corporations should have no rights beyond those of any real red blooded citizen, but the fact is that the administration gives a lot of special treatment to these unconscious, unfeeling profit machines. And this is another example.

If this sort of thing wasn't going on before, it wouldn't have ended up in the courts.

Wrong. Just because it's in the court of appeals system doesn't mean it's been going on all along, and has no bearing whatsoever on the legality of the behavior. It's been a long established fact that stubborn property owners will hold up commercial development by not selling out to the developers.

Oh, sorry. I forgot, this is the worst thing the government's ever done. THEY TERK OUR JERBS!

Wake up, some of us don't happen to share the same cartoon version of reality in which you live, XQUZYPHYR, and rather than everything having comedic effect alone, some things actually matter.
posted by nervousfritz at 8:08 AM on June 27, 2005

"nor shall private property be taken for public use"

As this decision now stands amendment 5 needs to read "nor shall private property be taken for public or private use"

Now please try to reconcile this decision.
posted by MrLint at 8:09 AM on June 27, 2005

So if a development group lobbies a legislature saying that their new project will generate X millions of dollars in tax revenue, shouldn't they be held to that figure if they fail to do so?

A: So, uh, we're about two thousand bucks short of the 200 grand we said we'd make you in taxes.
B: Oh, really? Well, we'll be calling eminent domain on the property again. You'll get whatever we assess.
A: But we spent millions on the building project!
B: Yeah, but we already decided that the land was worth 50 bucks when we kicked out the last folks that owned it. So you'll get maybe 60.
posted by robocop is bleeding at 8:17 AM on June 27, 2005

oops,

Justice Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U.S. Supreme Court since 1988.

A notable exception to supporting the right to personal privacy is the Kelo v. New London decision where he joined 4 liberal Judicials in supporting the local government's right to take private property under eminent domain.

I found no information regarding Honorable Kennedy's testicles.
posted by nervousfritz at 8:31 AM on June 27, 2005

So what's the difference between this and Bush's texas land grab?
posted by George_Spiggott at 8:36 AM on June 27, 2005

It's not a question of whether or not private property can be reclaimed in order to benefit the public good, it's the question:
"What qualifies as public good?"

Does a private, commercial enterprise qualify as "public good?"

A stadium?

What about a convention center?

A public utility?

Here, in Philadelphia a few years ago, there was a conflict about building a new stadium, right in the downtown area. Its proposed location likely would have destroyed Chinatown. Not only that, but parking and traffic would have been nearly impossible, if not a complete mess. They decided to keep the stadiums where they were, out of the way in South Philly, away from concentrated residence and commerce. It wound up being in the 'public good' to not build a stadium downtown, but was that the reasoning for the decision?

What about "just compensation?"

The convention center here is expanding, also. So much so that developers buy and improve things in it's path in so that when they get bought out, they'll get more money. There's a whole apartment building across the street from the convention center which is mostly empty. People aren't moving in because they figure they'll just have to move again when the center expands.
A little further down the block is a hardware store that's been there since 1920something. You won't find another place like it in the city. It's not even remotely derelict and all the guys who work there are the nicest guys in the world. I don't think any of them are younger than 60.

So how do we compensate the people who are forced to move in the name of the "public good?"
There has to be a fair system that not only justly compensates the long term "neighborhood" owners as well as the strategic investors. Sure, you can appraise a property at a lower value if it's in the path of a project. It's destruction is imminent. Maybe it should be appraised without taking the circumstances into consideration. That's fair, right?
In the case of the state turning the property over to private developers to build a stadium, convention center, marina, or whatever, wouldn't it be fair to give the displaced people (or bought-out owners) shares of whatever's being built? That way, they can not only receive enough compensation for their lost property, but they can have some incentive to cooperate. If someone is being forced into making this kind of sacrifice for the "public good," shouldn't they be the first people to benefit? Shouldn't they get to enjoy some of the success of the project? Buying property for less than it's market value OR personal value certainly isn't "just compensation." If anything, they should air on the side of over-compensation.
posted by Jon-o at 8:36 AM on June 27, 2005

Well, I could regurgitate the two dissents which spell out why this expands and creates new law, or you could read them for yourself. O'Connor. Thomas. They are short. I think one has to meet those opinions on their terms if one wants to argue that this is not an act of judicial activisim. I adopt those arguments, and to them, would only add the following:

This case is a textbook example of constitutional interpretation (or, more properly, the lack thereof).

It's fairly plain the 5th Amendment has always been a limitation on the power of eminent domain; property could only be taken if it was for public use. That it is a limitation and not a grant of power is extremely significant for interpretive purposes. There is a canon of construction that is, in Latin, expressio unius est exclusio alterius. Expression of the one is exclusion of the other. What it means is this: If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay. The inclusion of the one class is an implicit exclusion of the other. Or, in these terms, if one says land may only be taken for public use, it is an express exclusion of the other possibility--that it be taken for private use.

And this is because words have meaning: public use had heretofore always meant "public use." Now it can be for private use under the penumbra of "economic development." The majority reads "public use" as "general welfare" which is textually inapposite since the drafters would have used the phrase "general welfare" if they meant that, as they did elsewhere. But the text and the caselaw historically suggests that public use has a very definite meaning: roads, canals, parks, etc.

This opinion is a clear expansion of the power of eminent domain and the Supreme's expand it by rendering the "public use" limitation meaningless. Now, the only limitation on the power is that the use is legitimate---a constitutionally meaningless, and therefore empowering, term.
posted by dios at 8:40 AM on June 27, 2005

I want specifics, in other words.

Okay. Try here.
posted by Kwantsar at 8:40 AM on June 27, 2005

Um, MrLint, you left off "without just compensation." Yes, the government can seize property for public use, they just have to pay what they see is fair.

Who are you talking about?

Rousseau is suppose, but he's been dead for 200 years. There are probably some moronic kids that quote him without understanding, but you are right, that is fiction.

I suppose I'll try and weed through some of your vitriol and personal attacks and trolls and try and find some of the meat of your argument. Thanks for the false accusations by the way, you are a real winner. Again, I did not say I thought it was good or bad that this was done, just that it has been done and that the law, including case law, supports it.

the ability for the government to steal your stuff and give it to some corporation is new

In fact it is not. The government has a long history of seizing property and transferring it to other private and corporate owners. The thousands of miles of railroads that were built throughout the 1800's by private corporations on often seized private lands would be an example of that. Look up Berman v. Parker from 1954 where private property was seized and transferred to a developer.

The Brooklyn Bridge was owned by a private corporation the New York Bridge Company until ownership was transferred to the public in the 1870's (before it was actually completed). The state legislature of New York passed laws seizing the land for it to be built and transferring the land to the company.
posted by Pollomacho at 8:49 AM on June 27, 2005

Does this mean Freeport, TX is now Privatemarina, TX?
posted by joe lisboa at 8:54 AM on June 27, 2005

Thanks for that dios. Good stuff for thick heads such as myself.
posted by KevinSkomsvold at 8:55 AM on June 27, 2005

I'll tell you one thing; the last few Supreme Court decisions have made a lot less worried about possibly getting another conservative judge on the Supreme Court. Why are the liberal judges coming down on the wrong side of these things every time lately?
posted by designbot at 8:56 AM on June 27, 2005

Somewhat more seriously, it's really gratifying to find an issue discussed on the blue wherein I'm on the same side as S&L, dios, and other more vocal Mefite conservatives. That's genuine non-snark, as it gives me hope that there's room for reasonable consensus across the great divide. I tuned in expecting a battle over the Commandments holding and was so (relatively) happy to see how this thread is turning out.

On preview: maybe, designbot, because they [the so-called liberal SCOTUS justices] don't have a monopoly on good jurisprudence?
posted by joe lisboa at 9:01 AM on June 27, 2005

(Er, today's rulings have their own thread, but you know what I meant, I hope.)
posted by joe lisboa at 9:06 AM on June 27, 2005

I wish people would spend time talking about *solutions* to this problem, rather then bitching about it. The way I see it there are two major ones

1) lobby your state's government to prevent this sort of thing,
2) Lobby the federal government to prevent it.

At the very least there should be a centralized, impartial, federal board that assigns property values in eminent domain cases. It's ridiculous that the same people who want to take the land also get to value it.

What I'd really like to see is a constitutional amendment that restricts eminent domain to a much more narrow application, such as parks, power plants, roads, and *truly* blighted neighborhoods. There, of course, needs to be a strict definition of blighted land, as well.
posted by delmoi at 9:07 AM on June 27, 2005

dios's links give me "redirection limit exceeded," so I can't read the opinions. Anyone have a mirror / different link / executive summary?

dios has gone to great lengths to explain why this decision is wrong, in terms of violating the fifth amendment. But the question, as far as "judicial activism" is concerned, is surely "What about this decision is new or different from countless similar decisions made in the past?" As far as I can see, no one has addressed that.
posted by Western Infidels at 9:07 AM on June 27, 2005

To delmoi's post, I would add the obvious, which is to elect public officials that don't feel that land seized for Costco's and casinos comprises promoting general welfare.

There, of course, needs to be a strict definition of blighted land, as well.

Even where land is "truly blighted" is it always a good idea to simply seize the land and build housing projects? Isn't that what lead to the decay of our cities in the first place? Isn't that why inner cities turned to shite while whitey ran for the burbs?
posted by Pollomacho at 9:16 AM on June 27, 2005

delmoi: Your solutions were ones that I had already offered--so it's not like no one was talking about them. I think having one central board, however, would be a nightmare of red tape and never-ending hold-ups. The Supreme Court gets to hear only the cases it chooses ('cept for disputes between states and such) as a means of avoiding such hassles. So you'd do better to have cases heard by lower-level administrative tribunals, maybe, and only extreme cases heard by a central board. But then you're adding a whole new layer of government that hardly anyone will pay much attention to, once the publicity has died down. You'll also increase the expense of government that much more, at a time when the nation is on the road to fiscal and associated economic disaster. Really conservative move, that.
posted by raysmj at 9:35 AM on June 27, 2005

nervousfritz foamed at the mouth thusly:
Who are you talking about? How typical of these times, that we should conjure fictional people with ludicrous views, and allow these figments of our imagination to shape our debate. Get a life you loser.
People like this exist, I've spoken to them, and at least a couple have expressed their view that the Kelo decision is a non-issue because people have no right to private property to begin with. So do kindly FOAD.

Anyway, if it wasn't obvious, I also oppose the misuse of eminent domain to enrich private business, genius, and if you weren't so busy trashing the views of anyone who doesn't march in ideological lockstep with you, you'd notice that.
posted by darukaru at 9:57 AM on June 27, 2005

quidnunc kid wins
posted by brucec at 10:13 AM on June 27, 2005

Property is for use until you die, same as money, you can't take it with you and it really doesn't "belong" to anyone, we're just using it while we're alive on earth.

I mostly disagree with the SCOTUS decision since it provides not for the public good, but for the good of the already wealthy. How do those opposed to this decision and who are supporters of Dubya reconcile the Texas Ranger's stadium sweetheart deal where the arsehat "made" millions? Was Dubay evil to take advantage of Daddy's oil money connections and the eminent domain law used to seize a substantial amount fo land not needed for the stadium? [chirp] Aw, come on dios, you're already in the thread, what gives?
posted by nofundy at 10:33 AM on June 27, 2005

Who would have ever thought nofundy & Steve_At would be on the same side of a SCOTUS decision...
posted by jonson at 10:47 AM on June 27, 2005

This is just great! America is the new China - when are the new Kennebunkport, ME and Crawford, TX airports going to arrive?
posted by vhsiv at 10:48 AM on June 27, 2005

I don't know why conservatives are so flaming mad about this; it's their national, state, and local policies that lead to taking over small people's property and giving them to the Wal-Marts of the world. Wake up conservatives, 'your' party has one consistent policy: sucking most effectively on the corporate teat.
posted by norm at 11:23 AM on June 27, 2005

Yeah, norm, and it was the liberal Supremes who said it was hunky-dory, so we all have a pretty big fucking problem, no?
posted by Optimus Chyme at 11:35 AM on June 27, 2005

Oh, sorry. I forgot, this is the worst thing the government's ever done. THEY TERK OUR JERBS!

XQUZYPHYR, as someone who is risking watching his childhood home get stolen from his parents and knocked down, let me just say: Fuck You.

If you'd have gone to any planning board meetings in your locality in the last ten years (which I have) you'd have noticed how more and more people who make their money from nebulous "investments" are on them. Real estate developers realized a long time ago that nobody is watching out anymore. This ruling is a pat on the back for all the greedy bloodsucking vermin that have been destroying this country for their own profit.

And when they knock your house down to build a convention center while paying you just enough get a shitty apartment in crackville, I surely hope there are a million people waiting to pepper you with glib moronic bullshit.

Actually, what I really hope is that you're still in it when the bulldozers come.
posted by lumpenprole at 11:45 AM on June 27, 2005

Agreed norm. The paradox is that the so-called "liberal" justices formed the majority here. Which, I think, spotlights the lie that politics is divided into "liberal" and "conservative" halves. Perhaps those divisions were once good guides. But now, I think a better way to divide the polity is "private corporate interest" and "individual interest".

For example the medical cannabis decision makes much more sense if you forget the canard of "interstate commerce" and notice that the prime beneficiaries of the ruling are private pharmaceutical corps.

I think if the courts decisions are watched with this more useful division in mind, many judgements will be better understood.
posted by telstar at 11:51 AM on June 27, 2005

Yeah, norm, and it was the liberal Supremes who said it was hunky-dory, so we all have a pretty big fucking problem, no?

NEWS FLASH:

the "conservatives" control everything in this country, including the Supreme Court. While it shouldn't be shocking to you that the liberal judges are willing to ok powers of government (after all, that's why they were on the losing side of Lopez et al) maybe the people in the US should start blaming those in charge (the conservatives) for the bad policy.
posted by norm at 11:55 AM on June 27, 2005

maybe the people in the US should start blaming those in charge (the conservatives) for the bad policy

Yes, but that would require the left to stand for something. They are too busy trying not to get their hands dirty for that.
posted by Pollomacho at 12:11 PM on June 27, 2005

The liberal judges have a consistent viewpoint: Feds > Locals > Individuals, except when Feds and Locals are acting out of motives regarding race, religion, or punishment that the Supreme Court deems backwards. The only variable in this is what sort of sentiments are deemed as backwards, and it changes (and grows) every year.

The medical marijuana decision went the way it did because the court is not yet ready to regard the punishment of "victimless" crimes as backwards. However, just as it did with the death penalty and homosexuality, you can confidently expect the court to move in that direction. The decriminalization of drug use and prostitution by Supreme Court edict is a matter of when, not whether, unless one of the liberals is hit by a bus under a Republican President.
posted by MattD at 12:15 PM on June 27, 2005

Matt, its good that you used the term "consistent viewpoint" instead of "principle." Because what you just described is a judicial interpretive philosophy that lacks any guiding principle. You just described judicial legislating.... judicial activism... you just validated everything Bush has said about the Supreme Court.

Personally, I find it completely abhorrent that a judge would rely on his personal value choices in deciding constitutional law. I would like to expect more out of the Supreme Court than decisions based on the whim of what judges "deem" acceptable. Congrats, you just ceded your right to vote to black-robed kings.
posted by dios at 12:33 PM on June 27, 2005

and local ordinances, that would lessen any adverse effects here?

Yes. It's important to realise this decision only deals with the eminent domain clause in the *Federal* Constitution as it relates to a local government taking land for the alleged local public good. It says (basically) the Federal Constitution does not protect local property owners from local government when that government has decided turning the property over for private development will generate tax revenue that benefits the locality. So if there is an up-side to this, I think it's that people will be looking harder at their local governments and getting more involved in issues at a local level. We will probably see an orgy of developers for a short time building these "tax benefit" developments . . . but when the revenue fails to be generated (as it inevitably does), these type of projects are going to be political suicide for local politicians.
Here in San Francisco we have relatively strong development regulations, and it has been a saving grace to the character of the city and local landowners (not to mention those of us who rent!)
posted by sixdifferentways at 12:51 PM on June 27, 2005

Dios, I agree just about 100% with what Bush has to say about the liberals on the Court. Their jurisprudence on matters where the"viewpoint" is dispositive is grotesquely self-indulgent, particularly when it is evident that each of them is capable of good judging on issues where their viewpoint is NOT dispositive.

And I should have added "sexuality" into the litany of backwardness which prompts the liberals to invert their feds > locals > individuals hierarchy.
posted by MattD at 12:54 PM on June 27, 2005

Personally, I find it completely abhorrent that a judge would rely on his personal value choices in deciding constitutional law. I would like to expect more out of the Supreme Court than decisions based on the whim of what judges "deem" acceptable. Congrats, you just ceded your right to vote to black-robed kings.

I'm really not impressed by the rhetoric here, dios. The lionization of the conservatives on the court as 'principled' ignores many inconvenient decisions, such as Bush v. Gore (in which the conservative justices that had, up until then, gotten much mileage in legal circles by supporting state's rights manufactured a new brand of equal protection jurisprudence to co-opt a state's settling of its own election results) which show that they selectively use their political philosophies to endorse their policy ends.

The fact is that conservatives and Republican-appointed moderates own the majority on the court and the responsibility for bad decisions should be laid on their feet. I am not just talking about this one.

And since I'm already here...

The liberal judges have a consistent viewpoint: Feds > Locals > Individuals, except when Feds and Locals are acting out of motives regarding race, religion, or punishment that the Supreme Court deems backwards.

Look, those 'liberals' (note the scare quotes-- by historical standards, there are no liberal heroes on this court) are following the constitution (remember that?!). Federal law is paramount over state law, which can dictate to individuals, unless a constitutional guarantee of rights is involved; race, religion, and punishment happen to be areas that the Bill of Rights governs. It's amazing that you can somehow regard this process as arbitrary.
posted by norm at 1:08 PM on June 27, 2005

Norm, limited powers and the 9th and 10th amendments should profoundly restrict the feds > locals part of the equation.

The Bill of Rights (circa 1789) and the 14th and 15th Amendments (circa 1865) do not empower the Supreme Court to overturn the will of the people based upon whatever notion of rights is most trendy in the better-heeled arrondisments and cantons of Europe.
posted by MattD at 1:23 PM on June 27, 2005

what norm said.

would you abolish the Supreme Court or all courts, dios and Matt?

The will of the people is why we have the Legislative branch.
posted by amberglow at 1:26 PM on June 27, 2005

Norm, you ignored the 10th Amendment. Federal law is limited to those areas that the Constitution describes. So no, federal law is not paramount over state law. That is a completely wrong statement. There is a large area of preemption law that you completely mangle with that broad statement.

As to whether the conservative judges are always principled: I never said they were. I was talking about the difference between activist and interpretivist judges (whether they be "liberal" or "conservative). In that regard, I lament any decision that is not based on clause-bound interpretivism. Sometimes both sides can be interpretivists and just focus on different clauses. But sometimes, a case is clearly interprevitists vs. activists. This is one of those cases. And judges who make decisions based on their own value judgments as they evolve over time are activist judges. And such behavior is an anathema to our Republic. As a general rule, the best interpretivists on the Court are Scalia, Thomas and then probably Souter, in my opinion. More often than not, those judges are going to be strict constructionists. And that is to their merit because they realize that their's is not a job of black-robed kings.
posted by dios at 1:29 PM on June 27, 2005

Norm, limited powers and the 9th and 10th amendments should profoundly restrict the feds > locals part of the equation.

Tell that to the Bush v. Gore majority, or to Robert Bork, that profound conservative theorist who opined that the 9th amendment is an inkblot that constrains nothing. Principle, apparently, in your understanding means rolling back previously decided constitutional freedoms by an ever-increasing list of exceptions that each swallow the rule themselves.

The Bill of Rights (circa 1789) and the 14th and 15th Amendments (circa 1865) do not empower the Supreme Court to overturn the will of the people based upon whatever notion of rights is most trendy in the better-heeled arrondisments (sic) and cantons of Europe.

You have got to be kidding me. Your argument is the successor of the bigots in Brown, the puritans in Griswold, and the jackbooted government thugs in Bowers. The US has been dragged kicking and screaming into a reasonable recognition of human rights by right-thinking jurists; the rights in our amendments protect against the tyranny of bigoted majorities and shouldn't be held hostage to them.
posted by norm at 1:33 PM on June 27, 2005

The 10th Amendment does not remove the powers of the federal government to make laws, it simply gives states the right to govern themselves in matters that do not pertain to all the states. Congress was delegated the power to make those laws. Those are the powers that are described by the Constitution.

The Bill of Rights (circa 1789) and the 14th and 15th Amendments (circa 1865) do not empower the Supreme Court to overturn the will of the people based upon whatever notion of rights is most trendy in the better-heeled arrondisments and cantons of Europe.

No, that would be Article III.
posted by Pollomacho at 1:41 PM on June 27, 2005

Tell that to the Bush v. Gore majority, or to Robert Bork, that profound conservative theorist who opined that the 9th amendment is an inkblot that constrains nothing.
posted by norm at 1:33 PM PST on June 27

Oh god, now you've gone and brought up Bork, the most ardent interprevtist of all! But when you do, you make sure you completely mischaracterize what he has said. That makes you either you don't know shit what you are talking about or a person arguing in complete bad faith.

Let me reach on my shelf here and share what Bork said about the Ninth Amendment:

"There is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution. Ely, along with a great many other people, thinks that it is precisely such a warrant. Nothing could be clearer, however, than that, whatever the purpose the ninth amendment was intended to serve, the creation of a mandate to invent constitutional rights was not one of them. The language of the amendment itself contradicts that notion.... If the Founders envisioned such a role [of activism] for the courts, they were remarkably adroit in avoiding saying so.... What, then, can the ninth amendment be taken to mean? One suggestion... is that the peopel retained certain rights because they were guarenteed by the various state contitutions, statutes and common law.... This meaning is not only grammatically correct, it also fits the placement of the ninth amendment just before the tenth and after the eight substantive guarentees of rights... The ninth amendment appears to serve a parallel function by guarenteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limites set of rights was guarentted by the federal charter."

Robert H. Bork, The Tempting of America: The Political Seduction of the Law 185 (1990).

Now, you want to trot out your bullshit argument that Bork thought the ninth amendment wasn't a limit on federal powers and is not, in fact, a principled interpretivist?
posted by dios at 1:50 PM on June 27, 2005

What the hell are you reading Pollomacho?

The 10th Amendment does not remove the powers of the federal government to make laws

Huh? The 10th Amendment is not a limitation on power?

How about we just look at the text, shall we?

The powers not delegated to the United States by the Constiution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It's an express limitation and reservervation of powers. How you not read that as a "removal" of the powers to make law in those areas? It's completely indefensible.
posted by dios at 1:54 PM on June 27, 2005

The argument for the 9th Amendment was that too specific a list of rights would be taken to mean by others--such as Bork--that no other rights were then held by the people. British leaders still make the same argument today; namely, that a listing of rights would restrict the number of rights the people presume they have.
posted by raysmj at 1:58 PM on June 27, 2005

NEWS FLASH:
the "conservatives" control everything in this country, including the Supreme Court.
posted by norm at 11:55 AM PST on June 27

NEWS FLASH: you can't blame the "conservatives" for the votes of more liberal judges, unless you think that Rehnquist and Thomas are giving Souter et al swirlies before the vote to intimidate them, thus making the conservatives look like heroes to both the right and left.
posted by Optimus Chyme at 2:02 PM on June 27, 2005

But when you do, you make sure you completely mischaracterize what he has said. That makes you either you don't know shit what you are talking about or a person arguing in complete bad faith.

I don't like your tone, dios. I'm arguing politely in good faith and you're cursing at me and being abusive. Look to what I said: Bork argued that the 9th amendment was an inkblot and constrained nothing. I can cite to a lot of people who share my opinion of Bork's 9th amendment analysis (and I must protest, also, that this is rather off topic), but I'll settle for Glenn Harland Reynolds' writeup in the Georgia Law Review, 1990:

However, the ninth amendment certainly seems to tell us something useful regarding the Framers' views of rights in general and of narrow, clause-bound interpretations of rights in particular. Bork, however, rejects any meaningful use of the ninth amendment. At his confirmation hearings, he referred to it as an "inkblot"' whose meaning could not be deciphered by judges. See Wall St. J., Oct. 5, 1987, at 22, col. 1. Now, however, Bork has reconsidered and says about the ninth amendment that "it seems to me a perfectly straightforward statement that rights already held by the people under their state charters would remain with the people and that the enumeration of rights in the federal charter did not alter that arrangement."' R. BORK, supra note 1, at 185. However, while the ninth amendment is a straightforward statement, Bork's view of it is largely insupportable and thoroughly inconsistent with the near- certain understanding of the Framers.

(my emphasis, obviously)

(SEX, LIES AND JURISPRUDENCE: ROBERT BORK, GRISWOLD AND THE PHILOSOPHY OF ORIGINAL UNDERSTANDING; helpfully made available by the flaming liberals over at Instapundit.)
posted by norm at 2:08 PM on June 27, 2005

Otimus Chyme: I'm pretty sure the poster of that statement knew the judges were the "more liberal" ones. I wasn't aware that Kennedy was more liberal than O'Connor, but never mind. In any case, the idea here is that public-private partnerships came to prominence as government turned more conservative, beginning in the late 1970s. By the late 1980s, when funds to the states were cut dramatically and all states started naming certain areas tax-free enterprise zones (where the public-private partnerships were rampant), these partnerships were commonplace, and today are an near-obsession at the state and local leveks. Conservatives did indeed lay the groundwork for all this. There's no question about it, no matter what you think of the utility of subsidies for gentrification and Disney-esque condo and shopping developments, etc.
posted by raysmj at 2:10 PM on June 27, 2005

norm, you did misconstrue Bork's point (and for that matter, Reynolds criticism of him). YOU used it as a suggestion that the Bork was not an interpretivist. And YOU mischaracterized it by saying that Bork thinks it "constrains nothing." That is complete fooey. I gave you Bork's actual words. You cited Reynolds critique of Bork's book, but his critique doesn't support what your argument is suggesting. You are wrong. Plain and simple.

You completely mischaracterize Bork, either intentional or not when you said:

Norm, limited powers and the 9th and 10th amendments should profoundly restrict the feds > locals part of the equation.

Tell that to the Bush v. Gore majority, or to Robert Bork, that profound conservative theorist who opined that the 9th amendment is an inkblot that constrains nothing.
posted by dios at 2:20 PM on June 27, 2005

Well this IS the same Supreme Court that essentially said, in Bush v. Gore, that no individual has a right to expect that his/her vote in a federal election will actually be counted (Rehnquist's opinion).

From the "you can vote but it doesn't matter" reasoning it's a very short leap to say "you can own and still be dispossessed at a whim." It IS somewhat surprising to see Rehnquist not having sided with the majority in Kelo, but then this SCOTUS is full of surprises.
posted by clevershark at 2:25 PM on June 27, 2005

XQUZYPHYR, as someone who is risking watching his childhood home get stolen from his parents and knocked down, let me just say: Fuck You.

Much appreciated. I'm glad you didn't do anything to emphasize my point about a people being a tad bit overzealous by, oh I don't know, saying you wish I died or anything.

I didn't say I love the decision. I think the situation sucks, and I'm sorry your town elected a board of complete and utter assholes that would do such a horrible thing to you. That doesn't mean the Supreme Court should perform an act of judicial activism in ways that users like Pollomacho and others have pointed out. It ain't the Supreme Court's fault that, in your own words, "no one's watching anymore." Part of it might be the fact that no one's been watching for, oh, let's say 230 years or so.

My point, and I won't back down on it, is that the outrage, much of it from lunatic anti-government types on the right, revolves around accusations of "tyranny" and that this is the most over-reaching extent of governmental powers, to which, yeah, I find fucking hilarious. Sorry if that's cynical or assholish, but to paraphrase nervousfritz's snip at me, here's a brief look at the "version of reality" in which I live: it's one where the government has instigated war with Mexico to seize California. It's one where millions of indigineous people were raped and murdered and their homeland stolen. It's one where thousands of enslaved Africans were promised 40 acres and a mule and instead hung for wanting to collect. And yeah, that comes off really preachy, but so has half the stuff about this ruling I've read in the last week.

Unlike this current situation where there are still legislative and community-based ways to combat it, these were all incidents of actual tyranny. And a hundred years later, it's these same "how fast can we impeach these judicial TYRANTS?" wingnuts telling me how stupid I am for suggesting that many, you know, an apology and some reparations are in order. Oh, no, it's time for people to "get over" all that. But then, all of a sudden, lots of people go "whoa... you mean the government can fuck ME over too? Well shit, now I'm pissed!"

For god's sakes, man, you have the power to fucking stop these people in ways that thousands, millions couldn't. And if you want to present some ideas for that I'm open to 'em and I'll likely support you with them. But don't you dare fucking tell me that I don't care about people getting fucked over because I disagree with you on a court decision, and because I think the idea that screaming how this is the greatest act of governmental tyranny in history is laughable.

If you want me to support your effort to fight back within the extent of the law against the fuckers who did this to you- getting them out, getting new people in- I'm all for it. But if you're going to tell me I should get run over by a bulldozer because I think people are overreacting, then fuck you right back.
posted by XQUZYPHYR at 2:34 PM on June 27, 2005

norm, you did misconstrue Bork's point (and for that matter, Reynolds criticism of him). YOU used it as a suggestion that the Bork was not an interpretivist.

dios, you are incredibly, probably intentionally obtuse and pedantic and completely missing my point. what I actually said was that conservatives like Bork don't think the 9th amendment constrains the government.

Or to say it another way, let's go back to 1L con law. What constrains the government, class?

"rights"

very good! where do rights come from in our republic*, class?

"the Constitution!"

excellent! which conservative theorist argued that the ninth amendment, which most modern justices of the Supreme Court have argued provides support for the penumbra theory of rights, was an inkblot and provided no constraint of the government?

"Bork!"

Class, how is this relevant to the debate at hand?

"..."

*I'm sure you'll forgive me for sidestepping the whole philosphical divide about whether rights are a natural or positive law creation, or would your taste for irrelevant pedantry not allow that?
posted by norm at 2:44 PM on June 27, 2005

From the June 21 edition of the Baltimore Sun:

Last summer, when one of Baltimore's most powerful and prolific developers wanted Daniel F. Jackson's Charles Village rowhouse, Jackson had just one thing to say: "Show me the money."

And now, he has been shown. More than $1 million of it.

Jackson and two other property owners were all that stood between developer C. William Struever and his planned $150 million condominium and retail project near the Johns Hopkins University.

This spring, the resigned developer wrote a cheeky Jackson a check for more than $1.1 million - a price some Baltimore mansions struggle to pull in.

Two days before the SCOTUS ruling...that's gotta sting.

We now return you to your regularly scheduled constitutional debate...
posted by QuestionableSwami at 3:00 PM on June 27, 2005

"Class-Apartheid"
posted by Kwantsar at 3:07 PM on June 27, 2005

Just because you like the outcomes doesn't make judicial tyranny right.

And one would be quite wrong to imply that judicial tyranny is a pre-requisite for achieving social reforms in democracies. Western Europe is plenty "reformed" and essentially none of it came at the hands of dictatorial judges, including such vast achievements as the decolonization of Africa and Asia.

Even at home, most important, and lasting, reforms, were actually secured by legislators and not judges. Brown vs. Board was virtually meaningless until politicians got behind more than ten years later. To the extent judges then picked up on their ability to follow up on Brown, they made mistake after mistake -- ten bad, or at least totally ineffectual in benefit for minority students, desegregation plans for every one good one.

And one thing should be entirely clear: if it weren't for liberal judges tyrannizing the American people there would be no Republican Party in its current form, because their would be no basis for allegiance between social conservatives (who would be free to run their communities as they saw fit, and vote for economic liberals notwithstanding that) and business interests.
posted by MattD at 3:07 PM on June 27, 2005

How many of you are seriously depressed that it was the "good" justices that wrote this awful precedent? I truly can't stand Thomas, Renquist and Scalia, but they're the only ones that stood up to defend regular people this time. Well, what the heck?
posted by zwemer at 3:07 PM on June 27, 2005

Questionable, that's exactly what should happen, not these grabs at some supposed "market value." Govts have money, and Corporations have money--they should use it.
posted by amberglow at 3:12 PM on June 27, 2005

was an inkblot and provided no constraint of the government? "Bork!"
posted by norm at 2:44 PM PST on June 27

Again. The BOLDED statement is completely wrong. I have provided arguments showing that Bork believes it constrains government power in that it reserves rights to the people. I included the passage from his book where he spells that out. Quite simply, no thinking individual can read his words I provided and then say "Bork says the Ninth Amendment does not provide a constraint on the government." You are calling me a pendant for pointing this out, but that is only because you are arguing against bald facts.

Bork believes, argues and is shown above that the Ninth Amendment reserves rights that were protected under the state constitutions, common law, etc. The Ninth Amendment constrains the government from interfering with those rights.

But here you sit, still COMPLETELY misstating his argument and suggesting he thinks it constrains nothing.

I doubt you have ever read Bork. I doubt you have an ounce of understanding of what he believes. Obviously you picked up your argument from some blog somewhere and now are trumpeting it in the face of his actual argument that I provided above. Here, let me repaste it on the off-chance you might bother to find out what he actually thinks:

There is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution. Ely, along with a great many other people, thinks that it is precisely such a warrant. Nothing could be clearer, however, than that, whatever the purpose the ninth amendment was intended to serve, the creation of a mandate to invent constitutional rights was not one of them. The language of the amendment itself contradicts that notion.... If the Founders envisioned such a role [of activism] for the courts, they were remarkably adroit in avoiding saying so.... What, then, can the ninth amendment be taken to mean? One suggestion... is that the people retained certain rights because they were guaranteed by the various state constitutions, statutes and common law.... This meaning is not only grammatically correct, it also fits the placement of the ninth amendment just before the tenth and after the eight substantive guarantees of rights... The ninth amendment appears to serve a parallel function by guaranteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limits set of rights was guaranteed by the federal charter.
posted by dios at 4:28 PM on June 27, 2005

By the way, you are at least quoting him partially correct. Yes, he did call it an inkblot. But do you know what he meant by that? I'd love to see you explain your understanding of what he meant by that. I'd be shocked if you actually could explain his argument without getting it wrong or manipulating it.
posted by dios at 4:38 PM on June 27, 2005

People seem to be quite confused about what side they are on here. They are baffled that the more liberal justices side with the principle of eminent domain, but that is because they are confusing their discontent of a particular outcome with the principle itself.

Eminent domain is a liberal and progressive principle: that the government can redistribute private property for the general welfare, with just compensation. It should not be surprising that liberal justices would support that idea and conservatives would oppose it.

Eminent domain was placed in the constitution by the founders with good reason and has been applied for over 230 years, thousands of times with good results, including transfers to private owners.

The principle is well established and is responsible for our highways, parks, government buildings, etc. If you want to see the flip side just google up the wing-nuts on the subject of "takings" and you will find that they would have us paying property owners to prevent them from polluting.

Just because a little old lady was evicted from her house is no reason to throw the baby out with the bathwater. That would be like repealing the right to free speech because it allows Nazis to march in Skokie.

The government can do all sorts of things that have bad results for some, including taking part of your income in the form of taxes and even putting you in uniform and sacrificing your life. This is the price of living in a cooperative society for mutual benefit.

The fault is not with the Supreme Court which made the right decision in this case. The fault is with corrupt local governments that allow bad applications of a good law. If you don't like the results, take that up with your local government. There is nothing preventing them from abolishing eminent domain in their local jurisdiction. But don't expect the Supreme Court to abandon the Constitution simply because of a single bad outcome.
posted by JackFlash at 5:45 PM on June 27, 2005

It should not be surprising that liberal justices would support that idea and conservatives would oppose it

I guess I'm conservative then. Steve, do you guys have a welcome basket? Just one more step toward corporatism.
posted by shawnj at 6:00 PM on June 27, 2005

But it's the general welfare thing that used to count, Jack, no? How does an office building promote the general welfare?
posted by amberglow at 6:02 PM on June 27, 2005

JackFlash writes "The fault is not with the Supreme Court which made the right decision in this case."

So you believe that "increased tax revenue" is a sufficient reason for a local government to invoke eminent domain, starting a process by which an individual may be dispossessed of his/her property for (potentially) pennies on the dollar so that said property may be handed over to a corporation sufficiently well-connected to have the process kick-started in the first place?
posted by clevershark at 6:04 PM on June 27, 2005

shawnj: What do you mean by corporatism? I hear people throwing out this word all the time, and am seriously annoyed by what I'm thinking (in many cases knowing) is its near-total misapplication.
posted by raysmj at 6:39 PM on June 27, 2005

Dios, I congratulate you on a well-worded, mainly non-incendiary, cogent and comprehensive argument. It has been very enlightening.

I have encouraged Spiderwire to move from the previous thread to this one. He had previously more or less convinced me that the ruling was appropriate.

Now, I'm not sure again.

I find it impossible to imagine the founding fathers meant for private land to be taken away for use by corporations. Spiderwire had me thinking that this new interpretation wouldn't be abused, but the contents of this thread put lie to that idea!

The Baltimore/Jackson mentioned above is really the way it should always go: any developer with the bucks for a multimillion dollar project should damn well be prepared to pay up.

The cost is chump change compared to the eventual returns the developers expect on their investment. Most people aren't going to hold out for the million dollar cheque: they'd likely be happy with a hundred thousand extra for the "moving expenses." Chump change.
posted by five fresh fish at 6:51 PM on June 27, 2005

Eminent domain was placed in the constitution by the founders with good reason and has been applied for over 230 years, thousands of times with good results, including transfers to private owners.

Just because a little old lady was evicted from her house is no reason to throw the baby out with the bathwater. That would be like repealing the right to free speech because it allows Nazis to march in Skokie.

Since 1950, some FOUR MILLION Americans, most of them poor and/or ethnic minorities, have been uprooted from their homes by "urban development" condemnations. In most cases, the beneficiaries of the takings were wealthy development interests, while the poor and politically disadvantaged victims were given compensation far below the level of their actual losses.

The principle is well established and is responsible for our highways, parks, government buildings, etc.

That's a straw man. Kelo isn't about a fucking highway. That's why people are so pissed off.
posted by Kwantsar at 7:32 PM on June 27, 2005

Well, what the heck?

The heck is thus: SCOTUS decided to not intervene with the will of the (popularly elected) legislature. They said, in effect, "This ain't our problem." It was a good ruling. It's not the SCOTUS' job to evaluate each and every case of eminent domain to see if the (popularly elected) legislature is making a good decision for their town.

Basically, SCOTUS is saying, "When you elect asswipes that don't act in your best interests, that's your own fucking fault." And they're right.

People harping on about judicial activism need to realize this is judicial nonactivism at work; had they ruled to interfere with the (once again, popularly elected) legislature, that would be overstepping the bounds of their authority.
posted by Civil_Disobedient at 8:35 PM on June 27, 2005

CD, the Supreme Court interferes with legislatures all the time--by ruling on existing laws and statutes. It's part of their job.
posted by amberglow at 8:50 PM on June 27, 2005

Steve, do you guys have a welcome basket?

No, but we do have a gas discount card. I'll send you the paper work.
posted by Steve_at_Linnwood at 9:09 PM on June 27, 2005

This is judicial nonactivism at work; had they ruled to interfere with the (once again, popularly elected) legislature, that would be overstepping the bounds of their authority.

The City of New London Planning commission (or what ever it was) did not write the Constitution. This was not the Supreme Court "interfering" with a local or state law passed by a local or state legislative body. This was a mater of Constitutional interpretation. See Dios' comments above.
posted by Steve_at_Linnwood at 9:13 PM on June 27, 2005

It's part of their job.

That's true. And not interfering, on occasion.
posted by Civil_Disobedient at 10:17 PM on June 27, 2005

That said, they sure opened the floodgates on the slip-n-slide of a slippery slope.
posted by Civil_Disobedient at 10:19 PM on June 27, 2005

I think I can see where this argument is going: if you don't like the idea that your city council can steal your property for a private interest, then proposition for local or state legislature that states that expropriation is reserved only for public works projects, ie. things owned by the local or state government. Basically, pass the buck back to the local government: if the people want it, legislate it.

However, there is also the fact that the 5th Admendment already says that expropriation can't be done for private interests.

One side says that the courts subsequently allowed such, and so we should side on history and allow things to continue as-are: pass the buck.

The other side says that the SCOTUS has not ruled on this issue, and must take a Constitutionalist approach to it: finding no good reason to allow such, it should correct the previous courts' errors and rule in a manner consistent with the Amendment. The buck stops here.

It's a case of damned if you do, damned if you don't.

Seems like the kind of thing that is ripe for a public citizens' inquiry. Judging by the reaction of the MeFi crowd, it looks like the previous courts have mis-applied the law and subsequently their rulings overturned and the Amendment restored.

i think it's that scotus hasn't ruled on this issue previously... US law and government is so confusing.
posted by five fresh fish at 10:45 PM on June 27, 2005

I hear people throwing out this word all the time, and am seriously annoyed by what I'm thinking (in many cases knowing) is its near-total misapplication.

What I mean by that is this. We all know that local governments aren't always the best when it comes to corruption issues. We also know that this decision allows for towns to use eminent domain with little, if any, restrictions and repercussions. Those two things said, is it unfair to think that abuses will happen, and that small time government officials who make the decision about these cases will be the target of bribes, kickbacks, and favors depending upon the application of the eminent domain? Not only that, but the idea that a) Private interests serving solely for profit can be part of "Public use" of land, and b) many local government officials are often friends of industry and business, seems to be another step toward merging the interest of corporations with that of the government and its people. Not that it is always a bad thing, of course, but I believe there's a difference between saying, "We need Company X to be profitable," and "Company X, you need a new mega-store? I've got a nice piece of land that you can have for cheap. How cheap? Well..."
posted by shawnj at 1:23 AM on June 28, 2005

despite dios' urge to focus on irrelevant pedantry (and just to put this to bed, please note the law review article I quoted; Bork changed his position between his confirmation hearings and the book you're quoting-- my source notes both of those positions, not that either is relevant to the overall point I'm making) I just want to clarify one thing about what I was trying to say:

The majority consisted of:

Stevens (Ford appointee)
Kennedy (Reagan appointee)
Souter (Bush I appointee)
Ginsburg (Clinton appointee)
Breyer (Clinton appointee)

It's patently absurd to call this a decision of a liberal court. There is no liberal court, and to say so requires a counterfactual argument in favor of a branch of government that has not been taken over by Republicans. At some point Americans can be sure who to blame for crappy policies, and the party of corporate interest (the Republicans, for those without a scorecard) has got to take responsibility.
posted by norm at 7:35 AM on June 28, 2005

This was a mater of Constitutional interpretation.

You mean, god forbid, the Supremes were actually doing what they are paid to do? Let's get 'em! To the Courthouse, angry mob!

What the hell are you reading Pollomacho?

I was actually reading your posts, which seem to be all over the place. You argue that the Federal government does not have power over local jurisdictions because the 10th Amendment says so:

Norm, limited powers and the 9th and 10th amendments should profoundly restrict the feds > locals part of the equation.

However, if you read the 10th amendment is only limits the feds in that any power the Constitution hasn't given them goes to the states and locals, yet the Constitution pretty much gives them the power to pass laws (in very broad categories) as they see fit. Article I, Section 8 of the Constitution lays out a whole litany of areas where the Congress has power to create basically whatever law they see fit to pass (and can get by the President). Granted, if a law does not fall into one of these broad categories or is state/local specific, Amendment 10 does cut the Congress out of the action, but the categories are broad enough to permit a very wide swath (particularly clause 3, interstate commerce).
posted by Pollomacho at 7:43 AM on June 28, 2005

Since the "impeach" word was used, (and I've seen it mentioned elsewhere)...

99% opposition to this decision + Republican control of the other two branches + memories of the Clinton impeachment leads me to wonder: is this decision is the perfect pretext for a power grab?

If they could railroad a few impeachments through, Bush would have a lot more judicial appointments available to him this term than the (potential) one he has now.

Someone smart tell me that won't happen.
posted by sonofsamiam at 9:23 AM on June 28, 2005

shawnj: That's not corporatism, which applies more to a consultative sort of governing, between the *central* government and various umbrella groups for business, labor, etc. What you're describing is cronyism or crony capitalism. And I take it you think the wisdom of Congress would be preferable? Are federal officials the best when it comes to corruption? And what evidence do you have that local officials are more corrupt than officials in other parts of the government? State governments, of course, have authority over local governments anyway--the level varies from state to state, based on their constitutions, but local governments do not typically have anything close to complete autonomy (maybe limited functional autonomy, at best).
posted by raysmj at 9:35 AM on June 28, 2005

norm, you are wrong.

I'm tired of addressing this issue because all you do is just say I am being pedantic. Fine. Whatever. Call me a pendant for pointing out that you are misstating facts and are completely wrong about the interpretation you argued.

You cannot provide any source (including the one you are relying on here) that shows that Bork thinks the Ninth Amendment "constrains nothing"--mainly because it is not true. It is clear from Bork's own argument and his testimony that he believes it is a constraint. I have provided the actual text. You are completely and factually wrong when you said Bork believes the Ninth Amendment "constrains nothing." You have not provided any source for such an inaccuracy, and you still haven't backed it up. Furthermore, you avoided my direct questions to have you explain what you think the "inkblot" comment means, and you haven't. The reason is that the reasoning and testimony around the inkblot comment directly refutes your incorrect assertion that Bork thinks it "constrains nothing." You couldn't be any more wrong, and that you refuse to address or argue you point, and instead just want to name call me, tells me that discussing this any further with you is pointless. You will not advance your argument in good faith.

As for your argument that there isn't a "liberal" part of the court, that is facially stupid. Any fair minded person can look at the Court and say that there is a liberal wing to the court; a wing that is willing and has extended its authority to effect policy choices in an effort to advance progressive principle.
posted by dios at 10:16 AM on June 28, 2005

Any fair minded person

Ho ho!
posted by sonofsamiam at 10:20 AM on June 28, 2005

And I take it you think the wisdom of Congress would be preferable?

Heh. No. A good number of people in Congress are just as much in bed with the people who profit from this decision as local governments are.

Are federal officials the best when it comes to corruption?

No, and I'm not sure where you thought I was suggesting that a Federal approach to this matter would be any better than a local one. It's like choosing which flavor of bleach to drink.

And what evidence do you have that local officials are more corrupt than officials in other parts of the government?

I didn't make that claim, but it's not like it's a rare occurrence. Michigan, Connecticut, Maryland, West Virginia, Ohio. And that's just what a few minutes of research digs up.

My point is, the entire business of using eminent domain to transfer property from one private holder to another is giving legitimacy to actions that to the wide majority of people that I have talked to and read find reprehensible. And that's before getting into the matter of its constitutionality, which I realize is the issue the SCOTUS is supposed to consider.
posted by shawnj at 10:34 AM on June 28, 2005

Some in Congress are as corrupt as people in local government area. Or do you mean some in local government? And who selects local officials? And the links you sent me are mostly about municipal employees, and corruption that was weeded out by working state judicial systems. The Conn. governor, Ohio coingate and Irvington mayor stuff pales next to what many Congress members are accused of doing now (see: Tom Delay), to the shenanigans that go in Congress all the time, and to starting a war on false pretenses, etc. The Maryland page I couldn't figure out, and again notice that the persons in question were indicted by a working justice system. There have been cases of judicial corruption over time too, or so I've heard.

Also, again, I don't like the effects of many public-private partnerships either--especailly in regard to creating a beggar-thy-neighbor climate in economic development at the state and local level. But there are cases of eminent domain being used for private interests stretching back to the late '70s. That you weren't aware of the cases doesn't mean they hadn't happened. I think, in hindsight, that the Court had no choice but to say it couldn't find a bright or absolute line between public and non-public use, that it wasn't the judiciary's role to say. It's unfortunate, and I thought the Court should have spelled out more about avoiding potentially severe cases, but I really don't see what the best alternative is.
posted by raysmj at 10:57 AM on June 28, 2005

sonofsam, it won't happen--judges usually have to commit crimes to get removed. I think you might see moves toward making it not a lifetime thing, but they'll die too.
posted by amberglow at 11:26 AM on June 28, 2005

dios, what is your problem? really? I really didn't want to have to talk about this further, but since I suspect that we're probably the last people in here, I'll go ahead and just talk to you.

You couldn't be any more wrong, and that you refuse to address or argue you point, and instead just want to name call me

Who's name calling? These are your words to me:

That makes you either you don't know shit what you are talking about or a person arguing in complete bad faith.

I doubt you have ever read Bork. I doubt you have an ounce of understanding of what he believes.

I'd be shocked if you actually could explain his argument without getting it wrong or manipulating it.

That last statement, by the way, is really some shocking hypocrisy, since you seem to be incapable of accurately representing what I've said from the very beginning. Actually, it's not just me; you missed MattD's sarcasm in one of his first postings and attacked him before he tipped you off that he was arguing on your side.

What possibly makes you think I haven't read Bork? You refute my claim about the inkblot with his 1990 book; the inkblot quote was from his 1987 confirmation hearings, and the law review article notes that his position appeared to have changed to the one you rather hysterically repeat at me twice. But his statement in the hearings was specifically about the theory of implied rights; Blackmun's decision in Roe, for example, relied on the 9th amendment as justification for such implied rights (the penumbra theory, which I also implicitly referenced in one of my above postings, believing [hoping?] that you'd pick up on that). At his hearing Bork denied the view that the 9th amendment justified legal recognition of constitutional rights not explicitly granted in the constitution, saying that such a liberal view was as if the 9th amendment gave rights under an inkblot, and he didn't think it was a judge's position to go about inventing what was under that inkblot.

As for your argument that there isn't a "liberal" part of the court, that is facially stupid.

I incorporate by reference my charge of hypocrisy above-- you are blatantly twisting my words. What I said was that this wasn't a liberal court. There is a good faith argument to be made that there is a liberal part to the court, but that's not what I said.

And why did I say that the whole interchange was irrelevant? It's because the entirety of it was that you pedantically wanted to get into a pissing contest about what Bork stood for, when I used him as an example to refute MattD (and your) claim that conservative theorists were the ones who respected the 9th and 10th amendment. That Bork later came up with a use for the 9th amendment (although not one that would ever provide a check against government abuse of a private right, such as protected in Griswold or Roe) does not refute my initial claim that Bork didn't think the ninth amendment was something that a federal judge could interpret. I mean, come on. This is the quote that Bork is most famous for!

This is a somewhat paraphrased form of the interchange in question (unfortunately I'm not finding it in the Congressional Record by a quick Google search, sorry):

Joe Biden gets into a Constitutional discussion with Robert Bork, in which he asks him, “Well, what do you say about the 9th Amendment? How do you read the 9th Amendment?”
...

[H]e said, “Well, I don’t know what it means and if someone would tell me what it means I would be happy to use it, but I just don’t know what it means.” And then he offered what became a famous metaphor, which has been of great use to me, as you can imagine. He said, “It’s as though you had a copy of the Constitution and there was an inkblot on it and you couldn’t read what was under the inkblot. I don’t think judges should make up what’s under the inkblot.”

(as quoted here)

Look, I know what you're saying. Bork is an interpretivist. He doesn't believe in any rights or laws that a judge can't point a finger to their source on. I get it. Really. I just don't think most of the 'conservatives' are very consistent with their philosophy. Generally Scalia sticks to this position, but the other 'conservatives' on the court are anything but; Rehnquist is the worst, patently changing his approach to whatever theory best supports his political opinion. The only use I had for citing Bork was to emphasize that, contrary to what MattD said, he didn't think the 9th amendment provided any rights for a judge to uphold.

The larger question I'm left with regarding you, however, is that even if I misstated facts here, which I emphatically argue that I did not, was it so worth wasting most your latter coments on this thread on it, cursing at me and impugning my intelligence? I find your bullying tactics deplorable and your tendency to focus on a clause rather than my overall thrust a rather weak argumentative tactic. You may get some mileage by such methods where you live but I am not impressed.
posted by norm at 11:38 AM on June 28, 2005

This is the quote that Bork is most famous for!

Not to thread jack the thread jack, but I thougt Bork was most famous for what he did (or maybe didn't do) during the Saturday Night Massacre?
posted by Pollomacho at 11:59 AM on June 28, 2005

You still haven't provided ANY source which says that Bork believes the Ninth Amendment "constrains nothing."

It's really simple. Can you do this? I guess not, because then it would be obvious that you original statement is wrong.

does not refute my initial claim that Bork didn't think the ninth amendment was something that a federal judge could interpret.

That was not your initial claim. I'll repost your nonsense for the third time.

Robert Bork, that profound conservative theorist who opined that the 9th amendment is an inkblot that constrains nothing.
posted by norm at 1:33 PM PST on June 27

That statement is wrong and you haven't admitted it as such. You are now hedging and trying to re-position your argument.

You finally bothered to google the quote to try to find out what was said, and his words are clear. His argument was and is that the Ninth Amendment protects rights. What those rights are, as a constitutional matter, are unknowable. The reason for that is because the text reserves the rights but does not define them. Thus, there is an "inkblot" covering the real message, or in other words, saying "here is a list of all the rights which you cannot touch" but then covering that with whiteout.

But Bork does not hedge on what the message is: there are rights and judges and legislators ARE CONSTRAINED from infringing on those rights. His testimony was focusing on the role of judges, and he argues that a judge cannot use the Ninth Amendment because it is a reservation of rights and not an authorization to effect them. I don't know how you take his testimony that Judges can't use the Ninth Amendment to create new rights and then make the asinine statement that you do that "the Ninth Amendment constrains nothing."

His point is very clear. He believes there is a reservation of rights through the Ninth Amendment that protection our rights from our common law, state constitutions, etc. and federal power cannot alter those rights. He believes legislators cannot act to deprive those people of those rights. They are constrained from infringing on them. And he believes that judges cannot use the Ninth Amendment to limit, deny or grant new rights because that would be Constitutionally inapposite.

In sum, your statement that he believes it "constrains nothing" was an attempt to suggest that Bork and conservatives were nihilists who believe that judges can do as they please and be activists. That was the meaning of your original statment.

Now, without admitting that you failed to state it correctly, you corretly note "Bork is an interpretivist." No shit! That was my point from the beginning and is why your initial statement is completely wrong. By defintion, interpretivists believe that the text constrains power.

If your argument is ultimately going to be that conservatives just play lip service to being interpretivists and sometimes are in fact not interpretivists, then I would point you to my previous comments wherein I already made that point. (And would add that more times than not, the interpretivism arrow points to their side) And I made that point without distorting facts. But you could not. Call it bullying tactics, pendantry or whatever. You were wrong, and this could have been resolved if you would have corrected your misstatement from the beginning instead of trying to argue a point that you are ultimately wrong on.
posted by dios at 12:24 PM on June 28, 2005

dios, I think a reasonable person will find it abundantly clear what I was saying from the beginning, through my nearly countless further explanations and clarifications. Your agenda is also pretty clear, you just want to proclaim yourself right and me wrong. I'm not interested in playing anymore.

Not to thread jack the thread jack, but I thougt Bork was most famous for what he did (or maybe didn't do) during the Saturday Night Massacre?

Hrm, it's arguable. I would pedantically (!) note that I just claimed the inkblot as his most notable quote though. Personally, I think he's most notable for his resemblance to the King Tut villain from the old Batman TV show (as played by Victor Buono).
posted by norm at 12:51 PM on June 28, 2005

I think a reasonable person will find it abundantly clear what I was saying from the beginning, through my nearly countless further explanations and clarifications.

I agree. Here is what you said:

Tell that to the Bush v. Gore majority, or to Robert Bork, that profound conservative theorist who opined that the 9th amendment is an inkblot that constrains nothing.

That is what you said. Your point was clear: that conservative judges, especially Robert Bork, don't adhere to the text of the Constitution and believe things like the Ninth Amendment mean nothing.

That is your point. And as to Bork, you are plainly wrong. Your refusal to admit that point is rather pathetic on your part. You even went so far as to try to recast your argument as if we would be too stupid to see you change it.

My "agenda" is also clear as you said: my "agenda" is to prove that you blatantly misstated an issue of fact and bullheadedly refuse to correct yourself. I wouldn't be interested in "playing" anymore either after I been exposed like that.
posted by dios at 12:58 PM on June 28, 2005

Swish! Despite numerous belaborings, the point yet again blows by dios!

He's like teflon, folks! (or just more literal-minded than Amelia Bedelia)
posted by sonofsamiam at 1:12 PM on June 28, 2005

I dunno. Norm seems to be relying on the beliefs of yesteryear's Bork, while Dios is showing that the current Bork doesn't have such beliefs.

I don't think Bork's years-ago and since-updated beliefs really have much bearing in this discussion.
posted by five fresh fish at 2:21 AM on June 29, 2005

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