Third Party & Independents: Archives

I should point out, that this bill DOES NOT address local governments seizing personal property for private development where federal funds are not involved. So, this bill is not, by any means, a cure-all for the devastating blow the Supreme Court dealt private property owners in the Kelo case.

However, it is a start. Take action now, and keep the pressure on. All Americans have a stake in this. In fact, wouldn’t it be a coup for American voters if they created a corporation to file for purchase of the home estates of each of the 5 Justices who voted against Kelo’s right to reject sale of her home. And created a lobby group to influence local governments to force the Justices to sell at fair market value - AFTER THE REAL ESTATE BUBBLE BURSTS !

Posted by: David R. Remer at June 30, 2005 04:02 AM

wouldn’t it be a coup for American voters if they created a corporation to file for purchase of the home estates of each of the 5 Justices who voted against Kelo’s right to reject sale of her home.

I happened to catch a little Hannity and Colmes tonight and some dude is actually doing precisely that for Justice Souter’s home.

Posted by: Nikita at June 30, 2005 04:34 AM

David,

It will be interesting to see who in congress supports the bill.
The outrage on watchblog seemed to cross all party lines, but in the MSM it seems to be mostly the right speaking out.
Do you think that is a mistake for the Dem.’s?

I also wonder if their silence is because most of the “taking” will be in urban areas for tax gain, and the Dem.’s mostly control the citys?

Posted by: Beagle at June 30, 2005 07:22 AM

My understanding of the problems felt by the judges in this case was that, if they found for the property owner, the entire precedent support of federal power, including everything from highway funds being used to force the 55 MPH speed limits and civil rights legislation, was in jeopardy.

Is there someone with legal knowledge available to explain/elaborate on what I heard on the radio about this? I think it was during an interview with the plaintiffs attorney, so grains of salt liberally applied.

Posted by: Dave at June 30, 2005 08:01 AM

The momentum this bill has gotten is a perfect example of the best of the democratic process. The American people are angry about Kelo, and our elected officials seem to be responding…

Does anyone know if they are going to try to push this bill through now, or wait till the next legislative session?

Posted by: Misha Tseytlin at June 30, 2005 09:09 AM

Thanks David for bringing this bill to my attention. I’ll be contacting my rep and urging him to support it ASAP…

How any American (regardless of party) can be anything but outraged by the Kelo ruling is beyond me.

This bill is a great start. We all need to keep the pressure on regarding the complete misuse of power that this ruling has created.

Posted by: Brad at June 30, 2005 09:44 AM

David,

Obviously this is in reaction to the recent Supreme Court ruling regarding the case where the city of New London, CT had declared homes to be demolished in favor of a project that the city felt met the eminent domain clause.

Also, didn’t the Court also rule that the interpretation of “public use” could be left to the municipality/agency, etc. that was initiating the action against the property/property owners.

Since there is an action going on in New Hampshire (I think) involving a Justice’s home, it would appear that the outcome of all this will be favorable toward the individual property/home owner.

Posted by: steve smith at June 30, 2005 09:59 AM

David,

I wonder why we need legislation to assure “Life, Liberty, and the Pursuit of Happiness.

Posted by: Rocky at June 30, 2005 12:30 PM

Beagle, the Dem’s will be making a huge mistake, in my opinion, if they don’t climb on board this groundswell movement to restore private individual property rights against other wealthier private interests. Come the next election in 2006, just one high profile case hitting the media could give the GOP ammunition to hit Dem’s in every local as well as federal election race around the country. If history has taught me anything, it is that nothing motivates the electorate like an issue which hits home for the voter, which this literally does.

But, this is a double edged sword too for the GOP, too. This is because the Sup. Ct.’s ruling favors the power of the wealthy over rights of the non-wealthy, a philosophical concept endorsed in a plethora of ways by the GOP. If the Dem’s can land a blurb to encapsulate the concept to brand the GOP with, the Sup. Ct. ruling could be wielded against the GOP in 2006 as a product of conservative philosophy. Of course, the Dem’s would have to support the legislative overturning of the Sup. Ct. to make such a case work.

Posted by: David R. Remer at June 30, 2005 12:37 PM

steve smith asked: “Also, didn’t the Court also rule that the interpretation of “public use” could be left to the municipality/agency, etc. that was initiating the action against the property/property owners.”

Yes. And that is why Sen. Cornyn’s legislation will be largely ineffective in the protection of homeowners. The federal legislation only affects such moves by government where federal dollars are involved. The potential for abuse of private property rights remains huge as state, county, and municipal usurpation of homeowner rights for the most part will not involve federal dollars.

This is why, if Americans want to protect the sanctity of homeownership, they must move to make this a central issue in local races around the country in 2006 from Governor’s down to tax local assessor/collector and city council races.

Posted by: David R. Remer at June 30, 2005 12:44 PM

Dave said: “My understanding of the problems felt by the judges in this case was that, if they found for the property owner, the entire precedent support of federal power, including everything from highway funds being used to force the 55 MPH speed limits and civil rights legislation, was in jeopardy.”

Dave, I am not an attorney so, keep that in mind reading my response. As I see it however, had the Sup. Ct. refused to hear the Kelo case, state and local gov’t. would have continued to operate under the interpretation that eminent domain did not apply to any government authority other than federal government, since by definition, the federal government projects are for national interests, by and large which is easily argued as public good.

The Sup. Ct.’s ruling however, specifically opened eminent domain as a constitutionally protected right of state and local government which was not a widely held view in legal circles prior to the ruling. Specifically, it opened the door for wealthy private interests to pressure local gov’t. to declare emminent domain in forcing homeowner’s to sell their properties to other wealthier private interests.

One clear abuse of this power IS going to occur as municipalities use the Sup. Ct.s ruling to foreclose on affordable housing areas to level them and replace them with upscale housing which will drive out poorer Americans from their homes and municipalities and replace them with wealthier more upscale Americans who will increase tax coffers for local government. This is a real estate speculator’s wet dream come true. And it will become a lower middle class working American’s nightmare as lower cost housing shortages increase driving up the prices for lower construction standard housing.

The net effect will be working Americans being forced to sell House A at $75,000 only to find that the very same house in another area will cost them $95,000 to purchase. The lower income working Americans will be caught in a housing inflation cycle that will continuously erode their equity/asset wealth with the sale of current housing and purchase of similar housing elsewhere.

Posted by: David R. Remer at June 30, 2005 01:00 PM

Misha, I read the bill. There is no language as to when the bill would be placed on the legislative calendar. At this point, I can find no information yet, as to when, or if this bill will come to a committee or floor for vote.

But, as I stated above, this bill will do little to protect homeowners, since the vast majority of emminent domain forced sales by non-federal governments will not involve federal dollars, hence, this bill will have no standing for the majority of forced sales of homes.

Posted by: David R. Remer at June 30, 2005 01:08 PM

Brad, thank you. It is now up to all of us aware of the implications of the Sup. Ct.’s ruling, to make this a local election issue, since, it is at the state and local levels of government where the vast majority of abuses of eminent domain will take place.

Posted by: David R. Remer at June 30, 2005 01:10 PM

David,

Thank you for an increased understanding of the negative impacts of opening this pandora’s box. But,

As I see it however, had the Sup. Ct. refused to hear the Kelo case, state and local gov’t. would have continued to operate under the interpretation that eminent domain did not apply to any government authority other than federal government

does not sound like a liberal cause and the (L) judges were the majority opinion. Do you feel they voted to give local/state eminent domain authority?
I’m still very curious to hear other opinions as to what drove liberal judges to support this ruling. What were they protecting? How were the arguments formed resulting in the issuing of such an easily contemptible opinion?

Posted by: Dave at June 30, 2005 01:41 PM

David,

Its hard to put this into the rich opressing the poor clasification.

If state and local gov. stick up for the little guy, corperate money is powerless to seize someones property.

The entire case was about local gov. wanting more tax money, phizer had nothing to do with it.

I agree that developers have more money than homeowners, but without gov. they are toothless.

The city of new london will still own the property, but the developer gets a free 99 year lease because the city wants more taxes.

Posted by: Beagle at June 30, 2005 02:49 PM

Beagle, you are completely overlooking the immense influence developers and real estate folks have on the elections of local politicians. If they want it, they will get it. Remember, local election turnouts are extremely low - politicians know which side of their bread is buttered.

Posted by: David R. Remer at June 30, 2005 03:12 PM

Kelo is a classic takings case. And taking for the common good is a backbone of liberal thinking. Remember Hillary’s “We’re going to take things away from you on behalf of the common good” speech last year?

The left’s outrage here may be because it is real property and not cash (taxes) that is being taken, or maybe it is because the taking is not aimed at the rich and/or the rich might benefit. But the liberal judges on the SC ruled exactly as Misha predicted they would and in keeping with their philosophy.

Posted by: George in SC at June 30, 2005 03:15 PM

Dave
It’s all about money and control over the people, it has nothing to do with being a lib or cons.
It is just another step in destroying our Constitution and what it means.
Unless “we the people” join together to rebuild it, it will continue to crumble and the chance to rebuild it has almost passed.

Thanks for keeping people updated on a very important issue David!

Posted by: kctim at June 30, 2005 03:17 PM

David,

I agree with you about money controling the issue.
My point is that the issue can’t be framed as right/left.
Whoever sticks up for the little guy will gleen the rewards at the polling booth.
As far as the voters go, its bipartisan, they all hate the ruling.

Posted by: Beagle at June 30, 2005 03:22 PM

The power of eminent domain is fundamental for a community to be able to improve the relative quality of life within the community. As such, I fully support eminent domain when there is a substantial direct public benefit or public use. However, as Justice O’Connor’s dissent pointed out, Kelo upheld and even strengthened the idea of incidental public benefit, as is had from a shopping mall, for example (the sudden availability of goods and services that benefit the community). However, despite what the majority opinion held, I think this is a transfer of rights from A to B for B’s benefit alone, without any direct public benefit. Not only has Kelo erroded private property rights, it will be a powerful tool of developers to get their way, because they will merely have to show an incidental publich benefit. Not only do we need legislative protection in the form that is propounded in the beginning article, I think we should also bar governments from assigning eminent domain to third parties as happened in Kelo. Just a thought.

Posted by: ant at June 30, 2005 03:22 PM

I’ve had a little opportunity to read the decision in more depth. The majority are stating that the ruling was based on the following:
- Economic development has consistently been held as a “public use” for the purposes of the “Takings clause”
- The purchase needed to be viewed in its entirety as a development plan. The “takings” were part of the over all plan and the Pfizer plant was the incentive to buy more land. It was not a quid-pro-quo w/ Pfizer or anyone else.
- The pseudo-public (NLDC) is the purchaser of the land. It is not a transfer to another private party.
- There is no evidence of illegal goings on. The private developers are to be selected after the “takings” and had no voice in the actual “takings”
Therfore, they declined to over rule the CT Supreme Court.
Personally, IMO, even though this case really seems to meet the “public use” criteria, it is not the right thing. It’s opening a pandora’s box and it will lead to serious abuse.

Posted by: Dave at June 30, 2005 03:29 PM

about the souter’s home thing:
http://www.freestarmedia.com/hotellostliberty2.html
personally i think its a great idea.

Posted by: Vex at June 30, 2005 03:36 PM

Dave asked: “Do you feel they voted to give local/state eminent domain authority? “

That is the net consequence of their ruling, yes. They did not limit the eminent domain provision to federal government. Hence, they opened the constitutional door for local governments to use the ruling according to the dictates of corporate, business, and private entities seeking development. Since virtually all new development of anykind will increase the tax base of local government, the ruling gave carte blanche to local governments to rubber stamp all new development which needs real estate of private land homeowners AND (this is a biggie) farmers and ranchers who customarily get a tax rebate or reduction for agricultural use. Thus, it is not just urban communities which will be hard hit, but, rural landowners as well.

I know I would not have the financial resources to fight both city hall and a developer in court to try to keep my 5 acre homestead, and neither would most homeowners or small farmers and ranchers, or even small business owners.

Posted by: David R. Remer at June 30, 2005 04:01 PM

Got a small business competitor who is cutting into your larger business profits. No problem. Under Kelo, the larger business proposes increased tax revenues to local government for a proposed larger plant of operations where your smaller competitor’s business exists. Voila! Good bye, small business competitor in the name of eminent domain.

Posted by: David R. Remer at June 30, 2005 04:04 PM

Unjustly seizing people’s homes is what makes some people do crazy things. Is that what must happen before the law is overturned?

We’ve all heard some of the conspiracy theories about the world and government being controlled by corporations. Now it’s no longer conjecture, since governments can seize now land for economic purposes (i.e. to be in control of corporation(s)).

Posted by: d.a.n at June 30, 2005 04:49 PM

David,

Local gov’ts have always had the right of eminent domain. In this case the SCOTUS decided not to interfere in a local decision.

I’m afraid in this discussion we’ve heard alot about corrupt influence, which was not the case here. Also there’s a lot of conjecture about unreasonable seizures not likely to be supported by this decision.

I usually find d.a.n. to be a little too reminiscent of some ‘journeys’ I took in the 70’s but he might be right this time.

Posted by: Dave at June 30, 2005 09:16 PM

Here in South Florida, the case where the City of Hollywood has ruled to seize real estate property from the Mach family already had the developer trying to buy the land and structures from the family, who have refused every offer. The developer has also allegedly given huge campaign contributions to a key City Commissioner. If that isn’t a smoking gun, then I don’t know what is.

I am running for the State Senate seat in my district. You can be sure that one of my campaign planks will be to introduce legislation to prevent city governments from seizing property for incidental “public use.”

I urge all Americans to get involved in their local governments and toss the incumbents OUT!

Matt Unger

Posted by: Matthew Unger at June 30, 2005 09:38 PM

It is a pleasant surprise to see a post from someone who is actually campaigning for political office.

I look forward to progress reports from Matt Unger as he begins to get feedback from his potentially soon to be constituants.

Posted by: steve smith at June 30, 2005 10:51 PM

I hate to go against the weight of public opinion, here. I myself was a bit disturbed when I read the ruling of Kelo. But did anyone who read Kelo read any of cases that are its precendents? Takings cases as a rule tend to sound a bit alarming, but in practice don’t really amount to much. Some of the government’s powers under the Takings Clause have always been a bit disturbing.

I seem to recall reading an article (sorry, I know I’ll catch hell for not furnishing a link…) where a law professor said that Kelo really isn’t much of a departure from past takings jurisprudence, and sounds a lot more ominous than it is.

Sorry for the less than illuminating contribution, but just wanted to throw out an opposing viewpoint.

Posted by: unkind K at July 1, 2005 04:16 AM

Matthew Unger wrote: I am running for the State Senate seat in my district. You can be sure that one of my campaign planks will be to introduce legislation to prevent city governments from seizing property for incidental “public use.” I urge all Americans to get involved in their local governments and toss the incumbents OUT! Matt Unger

Hear ! Hear !
Toss out the incumbents.
Someone is playing my tune.

unkind wrote: But did anyone who read Kelo read any of cases that are its precendents?

There are often precedents, which lawyers love to find, which usually fly in the face of what is just and fair. If lawyers had to rely on what’s just, instead of precedents, they’d often have no case at all. That’s why they search high and low for precedents.

____________________________________________
NOTE: I do not mean to denigrate any profession, religion, race, gender, etc. I merely point out that some people are attracted to certain professions (e.g. law, politics, clergy, etc.) more so than others (e.g. fire fighter, engineer, doctor, nurse, etc.)
____________________________________________

Posted by: d.a.n at July 1, 2005 09:37 AM

d.a.n,

As you see, I also posted that it will be interesting to have feedback from an actial political candidate.

Matt represents the American Centrist Party.

So there is no confusion, I am interested in the feedback on his progress.

I am not a member of, sympathize with or necessarily agree with the views expressed by the American Centrist Party.

Posted by: steve smith at July 1, 2005 09:47 AM

Steve Smith,
I’m no longer a member of any party. If there was a party with no candidate, that merely served to educate the people on how to make their vote count the most, and how to best unseat incumbents, I’d be a member of that party. Because, I believe it matters less who is elected to office, than whether they’ll be transparent, accountable, and responsible after they are elected to office. Currently, too many politicians are stricken with the jelly-brain disease shortly after being elected to office, and they can’t remember what any of their campaign promises were (e.g. “read my lips” , “that depends on what the definition of ‘is’ is” , “I support strict border enforcement programs - DEC 1999” , ).

Perhaps all non-incumbents should help spread the idea of voting only for a non-incumbent.
However, once they’re elected, will they still feel that way ?
That’s why the people should continue to vote only for a non-incumbent, every election, until governments begin to solve some of the many uncontentious, no-brainer problems facing the nation.

For instance, the voters don’t have to micro-manage the process. They simply demand government create a checklist of pressing problems to be addressed, and show that list to the people. The best things to put on the lists first are the things that are no-brainers, and not highly contentious. Then, government should report periodically to the people on the progress (i.e. show problems solved, and status of those in progress). If government is making progress, the people (for the most part) may be happier, and will stop voting out incumbents every election.

The irony of it all, is that’s sort of how a democratic republic is supposed to work. Vote out those that aren’t making adequate progress.

But, in reality, it doesn’t work that way.
Fortunately for politicians, the people fail to realize the simplicity of do just that. Instead, the people are all seduced into the partisan hate-fests, and other distractions, while the problems of the nation continue to grow, year after year, in number and severity.

Posted by: d.a.n at July 1, 2005 11:29 AM

Sandra Day O’conner resigns, Let the games begin!

She leaves with honor for her dissent in the last ruling that is the topic of this article/thread.

David, I hope I wasn’t changing the topic of your article by posting that.

Posted by: Beagle at July 1, 2005 11:32 AM

To D.A.N.:

One of my campaign promises is accountability and responsiveness to The People. Once my campaign (for state office) website is ready for publication on the web, on it will be all the things that I intend to accomplish should I be elected. Any and all campaign promises will also be published there for all to see. If elected, I will leave the website up, maintain it regularly, and respond to as much constituent E-Mail as time will allow. By doing this, there is a record of what I promised, and that can be the measure of success or failure. Total transparency and responsiveness.

However, if for whatever reason I feel I am not serving the public good, I will resign the office in favor of someone who may do a better job. If at the end of the term I have not fulfilled a good portion of my campaign promises, then I hope The People will boot me out of office and elect someone else. Afterall, should I be elected to office, I will be taking a huge pay cut to do so.

As for voting only for non-incumbents… I agree. Our Founding Fathers thought the same way as well. I believe it was George Washington who said that citizens should serve their term in office and then go home when the term is up. Washington had no use for, or love of career politicians.

As soon as my campaign account’s check card arrives, I can pay for website hosting. Campaign finance laws prohibit me from paying out of pocket.

Have a great weekend and remember all those who fought, died, and sacrificed for what we have today (although I think what we have today would make most of them puke).

Matthew Unger

Posted by: Matthew Unger at July 1, 2005 12:04 PM

Matthew Under,

I’ll make a note to watch your progress.
Your plans to create a web-site with a list of things you plan to do, and then accomplish is a great idea. Other politicians have web-sites, but if you look at their activity, you’ll soon see how they are loaded up and weighted down with tons and tons of crap that are not high priorities. Also, it becomes clear very quickly that government has grown to nightmare proportions, meddles in everything, while being unaccountable for anything, and often makes the tax-payers responsible for their irresponsibility. The really tough issues don’t get resolved…they get swept under the rug, and left for someone else to deal with later (if ever), as the problems continue to grow in number and severity.

It would be great to see the federal government list the nation’s most pressing problems, what is being done, which have been resolved, and when, and who worked on those problems. As it is now, it takes a lot of research to determine what’s going on. That’s probably by design, since government, often, doesn’t want voters to know what is really going on.

I should reserve a wish for good luck, until I’ve seen your plans on your web-site. But, provided they at least hope to prioritize and focus on the most pressing problems of the state of Florida and the United States, I wish you luck.

P.S. Oh, and do me one favor. : )
Try to discourage Senators Mel Martinez and Bill Nelson from voting on pork-barrel, because I live in Texas, and because Florida will never come close to what the District of Columbia gets…they’ve got the inside track ofcourse (NOTE: Florida and Texas are near the bottom: 44th and 45th on the list. I don’t understand how Kennedy and Kerry keep getting re-elected with New Jersey at the bottom (51st) of the list ?

: )

Posted by: d.a.n at July 1, 2005 03:47 PM

d.a.n.

A critique of the entire legal system, eh? OK, that’s one way to go, I suppose…

It is unfortunate that people take such a dim view of the legal profession. Not that I don’t understand the stereotype myself — plenty of lawyers deserve it. That being said, there are plenty of good lawyers (myself included) trying to use the precedent-based system to achieve good results.

The thrust of my post was simply that Kelo wasn’t the huge watershed legal event that most people think it is. Takings cases have always been a bit disturbing. But they usually don’t amount to much in terms of people actually having their realty seized by the government.

And it does bother me slightly to see this issue getting so many people riled up, when there are more important ones out there that actually are affecting people. This seems like a distraction..?

Posted by: unkind K at July 1, 2005 05:27 PM

Several posts have discussed whether this ruling favors liberal or conservative ideology. I find that ironic on a “third party” site. The entire right/left spectrum of the American “mainstream” is just a narrow band near the statist end of the total, which takes at least two axies to properly map, as Jerry Pournelle demonstrated in his PoliSci doctoral thesis.

Both the Demicans and the Republocrats are devoted to increasing government power over personal lives and personal property. The only difference is that one is paternalistic, appealing to fear and hatred, while the other is maternalistic, appealing to guilt and envy.

Posted by: Vincent Burch at July 1, 2005 07:09 PM

Vincent,

Have you read Moral Politics?

unkind K,

You are a lawyer? If so, then please explain the basis for the decision in laymans terms. I can’t understand why liberal judges would decide in favor of the state in this matter.

Posted by: Dave at July 1, 2005 09:14 PM

The Eminent Domain decision has already affected a lot of people. The original Kelo case, the Mach case (in Hollywood, FL), and a new case filed only hours after the decision.

We need look no further than Freeport to see how this process goes awry.

Just hours after the Supreme Court’s decision Thursday, Freeport officials began efforts to seize waterfront property from two seafood companies as part of an $8 million marina development, according to a report by Chronicle correspondent Thayer Evans.

The action was accompanied by the usual economic development blather. The marina will lure $60 million worth of hotels, restaurants and shops, create hundreds of jobs and revitalize downtown.

Full Story: Houston Chronicle

I am no legal scholar, but past precedents may have very well been used for public use causes. These recent cases represent government and big business colluding to deprive property owners of their homes/businesses/real estate for minimum values (assessed tax value).

A dangerous and sad ruling. We are now on that “slippery slope.”

Matt Unger

Posted by: Matthew Unger at July 1, 2005 09:25 PM

Matthew Unger,
Thank you. Yes, a very slippery slope to say the least. Not enough people are too riled up yet…but wait until it’s their home or business that’s being seized (sorry about mispelling your name above).

unkind wrote: ….And it does bother me slightly to see this issue getting so many people riled up, when there are more important ones out there that actually are affecting people. This seems like a distraction..?

unkind,
No….this time, it’s not a mere distraction. Seizing peoples’ properties for corporations is not something that should go unnoticed, because you may be next. No, I think this thinly veiled attempt of corporate control of government will (hopefully) get thoroughly trounced and publicized. Americans may tolerate a lot of crap, until you start trying to take their homes and businesses for other (larger) businesses (not for strictly public use, such as a highway, city water treatment plant, etc.).

P.S. unkind,
That’s an interesting username (unkind?).
As I pointed out above….
____________________________________________
NOTE: I do not mean to denigrate any profession, religion, race, gender, etc. I merely point out that some people are attracted to certain professions (e.g. law, politics, clergy, etc.) more so than others (e.g. fire fighter, engineer, doctor, nurse, etc.)
____________________________________________

Likewise,
Professions don’t harm people.
Guns don’t harm people.
Religions don’t harm people.
Political Parties don’t harm people.
…..
People harm people.

Some professions attract cheaters and parasites more so than others. Unfortunately, that’s a reality that’s impossible to ignore, but doesn’t justify condemnation of the profession. Therefore, it’s tough to remember that we should treat everyone with respect until they’ve proven they don’t deserve it. I used to work at a law firm, and saw much of what goes on. Still, that doesn’t mean all lawyers are bad. But, unfortunately, when I worked at a law firm, the truth and justice were the last thing on too few of any one’s mind. And, precedent, like anything, can be abused. Precedent, in itself is not bad. It’s how it is used.

Posted by: d.a.n at July 1, 2005 10:05 PM

d.a.n.

I don’t really care when people trash lawyers. God knows, it’s deserved more often than not. But I didn’t really see the force of what I perceived to be a critique of stare decisis. Other than that, I don’t really have much of a problem with what you said.

I suppose the facts are proving the contrary of what I said. This decision is, after all, creating some real problems, I guess. I really didn’t expect that to be the case, as, like I said, takings jurisprudence has always placed a rather troubling amount of discretion in the government’s hands to take away people’s property, but never with such troubling results.

Dave,

I wish I had a good answer for you. I do criminal law, which pretty much never overlaps with the takings clause.

I consider myself pretty damned liberal, and I was very surprised to see the justices who came out in favor of this decision. My best guess is that they were simply ruling in a way that followed the precedents, and weren’t following their own political proclivities. Which is, technically and sometimes lamentably, what they are supposed to do.

If you want a sort of breakdown of the takings clause law as it stood before the decision, I can give you that, to the best of my understanding. Just not right now, because I’m off to get on the booze train for the 4th weekend.

Posted by: unkind K at July 1, 2005 10:26 PM

unkind,

That’s a kind offer ! Don’t let the booze train kill too many of those brain cells, I’m sure your clients pay good money.
But, Wait, you’re a criminal lawyer. Now I’m not so sure. Tom Mesereau or Tom Sneddon? (LOL?)

Posted by: Dave at July 1, 2005 10:50 PM

unkind,
I was just trying to indicate that “stares decisis” (doctrine of precedent) doesn’t always coincide with what’s just and fair, and too much time is spent looking for precedencts, rather than the fundamental laws that should have never allowed such precedents. But, mistakes are made, and some precedents are hopefully, eventually revealed to be mistakes. Precedents should not be used as insurance that a decision is legal, or just and fair.

Regarding “takings jurisprudence”, that’s a slippery slope, and any taking of property should always be limited by some very precise requirements. (1)It is for the public at large, and (2)No alternatives exist. Recent takings seek to pervert those requirements with very loose definitions for the “public good”. Especially since the takings are not strictly for the public, but for corporations (e.g. Pfizer), and it’s doubtful many valid alternatives were explored. Takings is a category in which we must stop the creation of more precedents.

Posted by: d.a.n at July 1, 2005 11:38 PM

Dave

No problem, sir. Actually, I’m thinking about studying for the bar in another state, so going over takings might be a helpful exercise.

And nobody’s drunk, yet. But God willing, it will happen.

d.a.n.

I don’t think many people would disagree with you there, but all *I’m* saying is, the government has ALWAYS had VERY broad taking power. I’m not saying that’s right, but it’s a pretty well-recognized reality among the legal community. Kelo did little to actually change that, except maybe for make people aware of the fact.

So, just to be clear, this is all pre-Kelo case law.

…

OK, channeling the spirit of my Con Law professor, now. I’m not going to cite cases, because it would take a while for me to do that research, and I do enough research at work.

The “taking” clause is in the 5th Amendment, which provides that private property may not be taken for public use without just compensation. Thus far, that’s pure Constitution, before Supreme Court interpretation.

The Supreme Court has held that the taking clause is not just applicable to the federal government, but also to the states via the 14th Amendment. Again, not too controversial. Keep in mind that the clause is not a source of power, but rather a limitation on it.

Now, the clause has ALWAYS been very liberally construed by courts, meaning that the government has a very easy legal test to pass in order to do a taking. Usually, all the government has to do is show that their action is rationally related to some legitimate public purpose, and there are a LOT of legitimate public purposes. It could literally be just about anything. Keep in mind, here, “legitimate public purposes” doesn’t mean what you think it does linguistically. Rather, it has been defined legally to mean an enormous range of things. And “rationally related” just means that the connection can’t be total nonsense — i.e., it’s a very easy standard to meet.

Moreover, and here d.a.n. should pay attention, authorized private enterprises could do takings if the taking relates to some public advantage. Usual examples (but the Court is NOT limited to these) are utility companies, say, taking property for power lines or water pipes or junk like that. Again, this is pre-Kelo.

Now, an important issue in taking jurisprudence is whether something is a “taking” (for which the government has to pay you) or a “regulation” (where they don’t). There are all sorts of nuances here, but I don’t think they really bear on the issue at hand.

These are just broad strokes, but it’s all accurate. I think it’s pretty scary, but keep in mind, it’s been this way long before Kelo. If the liberal justices let us down, it’s pretty easy to see that they were just following precedent, as they are technically required to do.

As for the real reason the liberal justices found that way, because God knows partisan politics is alive and well on the Supreme Court (just ask my least favorite justice, Antonin Scalia), who knows? Maybe the more liberal justices were trying to lend credence to their appearance of impartiality, saving their activism for a case that they really thought would matter.

Legally, I’m forced to say that they probably found as they should. In a political science kind of sense, since I’m a believer in limited government despite my rampant liberality, I think it’s a pretty unsettling decision. So don’t jump all over, me, d.a.n..

Did that answer any questions? Hope so.

Posted by: unkind K at July 2, 2005 01:37 AM

unkind,
Jump all over you? We’re just havin’ what what seems to be a civil discussion. Was there malice in anything that’s been written above? Even on the profession thing, it was noted that no profession should be denigrated. : )

At any rate, the primary issue wasn’t whether government often takes property, for public use (for utilities, highways, etc). It does.
It’s just highly questionalble when governments take several peoples’ homes (as in New London, CT) that isn’t strictly for public use, and Pfizer states no involvement, interest, or expectation of benefit whatsoever? That’s hard to believe, since the most notable result of the city’s efforts is the recent completion of Pfizer, Inc.’s $300 million dollar Global Research and Development Headquarters on the City’s waterfront.
As you said, “it’s a pretty unsettling decision”.
What’s also unsettling to some though, is that a legal justification can be created to support such an “unsettling decision”. It doesn’t help create faith in the legal system. But, then, in reality, that’s why the legal system is the often the target of criticism…because too often, the truth and justice get lost in the process and politics, and the truth and justice are often replaced by precedents. It’s understandable. Judges, if overturned, can defend themselves based on the many precedents. Personally, I’d prefer to see the eminent domain laws, or an Amendment to the Constitution, that explicitly and specifically states that property can be taken only (1) if it is for public use only, (2) it is a public necessity (i.e. not a park or parking lot), (3) only if there are no alternatives, and (4) there must be fair compensation (which is already stated in the Constitution).

In the case of New London, CT, it wouldn’t have been able to seize those properties, had the law been that explicit. Unfortunately, as you (unkind) point out, the law is not that clear, and precedents exist that can lead to such seizures. And, this is happening all over (see castlecoaliton.com) America. Governments are abusing the “eminent domain” laws, and a Constitutional Amendment or changes in the laws are needed to specifically and explicitly prohibit it, unless stringent tests are satisfied first.

Posted by: d.a.n at July 2, 2005 10:02 AM