Kelo et al v. City of New London
June 23, 2005 8:58 AM Subscribe

Supreme Court rules in favor of New London and all cities, property can be transferred from one private citizen to another. Sandra Day O'Conner in her outraged dissent, "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." More on the SCOTUSblog. History repeats itself? Anyone remember Oliver Cromwell "... prominent in defending the people of The Fens from wealthy landowners who wanted to drive them off their land."
posted by geoff. (155 comments total) 1 user marked this as a favorite

See, it's bullshit like this that makes me thankful for the Second Amendment.

I promise you anybody who tries to do this with my property will go down in a hail of bullets.
posted by keswick at 9:08 AM on June 23, 2005

Violence is not the answer.

That said, the best way to counter this is to demand appropriate legislation from your city council, state representatives, and congress(wo)men that bans this mis-use of emminent domain. Use your vote and get the idiots out of office that can invoke this wrongly-owned power that the Supreme Court has given them.

I haven't read the entire decision, but I'll go do that now.
posted by pooldemon at 9:21 AM on June 23, 2005

Violence is not the answer. It is the question. The answer is "yes."

Seriously though, tree of liberty + blood of tyrants, etc.
posted by keswick at 9:33 AM on June 23, 2005

I can think of occasions where I would support the transfer of private lands to another private party if the public good greatly outweighed the individual's property rights.

Imagine that a city discovers it desperately needs a windfarm to support its grid. The only viable location is on privately held land. In this case I feel that this would satisfies Article V's condition of "public use" even if the windfarm was operated privately.

But if the only "public use" is tax revenue, that's too abstract-- I can't imagine an application of eminent domain that wouldn't qualify: If Mr. Burns wants to tear down his neighbor's house to build a swimming pool, would that qualify if it resulted in increased property taxes?
posted by justkevin at 9:36 AM on June 23, 2005

I'm more outraged that an elected, public official has said that corporations and real estate development firms are citizens, and no one blinks an eye. It took me years and effort to earn my citizenship and I don't think corporations deserve the same classifications and rights as living human beings.
posted by Rothko at 9:37 AM on June 23, 2005

I'm more outraged that an elected, public official has said that corporations and real estate development firms are citizens

Corporations as persons (and thus citizens) has been the case since Santa Clara County v. Southern Pacific, 1886
posted by geoff. at 9:41 AM on June 23, 2005

Anybody remember what they did to Cromwell after he was dead?
posted by mokujin at 9:42 AM on June 23, 2005

Some more discussion here.
posted by loquax at 9:50 AM on June 23, 2005

pooldemon writes "That said, the best way to counter this is to demand appropriate legislation from your city council, state representatives, and congress(wo)men that bans this mis-use of emminent domain."

er, yeah. Convince politicians that they should, for reasons of good faith, limit their own powers. THAT's gonna work for sure!
posted by clevershark at 9:52 AM on June 23, 2005

This is awful. It's happening in my town, Long Branch NJ. The town is using eminent domain to take a sqare block of homes away from its owners and residents, and giving it to a building company, K. Hovinian to build beachside condos. The appraisal system is rigged too. They're being offered a pittance for their homes and land. The properties are right by the beach, so they are worth a fortune, but these people who've lived there for decades won't see a dime of it. And the people living there (they're called MTOTSA if you want to google them) have had every appeal blocked by the local government, even when the came up with a redevelopment plan of their own.

It's a huge scam, with big kickbacks going to the local politicans, and I feel terrible for the poor people getting their homes forcefully purchased from them. This is one of very few cases where I think violence is justified. The government doesn't have its eye on my home (yet), but if it did, I would probably look outside the law for an answer. Maybe get in touch with cousin sal and have him "take care of it" for me. It is New Jersey after all!
posted by illuminatus at 9:57 AM on June 23, 2005

Geoff said: "Corporations as persons (and thus citizens) has been the case since Santa Clara County v. Southern Pacific, 1886"

I wonder, if that's the case (no dispute, I'm in the process of incorporating a business right now), will there come a time when corporations demand the vote? And then will large numbers of corporate-owned corporations be a catered-to set of swing voters?
posted by Kickstart70 at 10:08 AM on June 23, 2005

Goddamn you, IJ, you've done so well and then you had to go and lose the big one, you motherfuckers.

So much for the "ownership society," eh?

On preview: papakwanz, conservatives have a much stronger tradition of limiting government rights and holding property rights sacred than liberals do. The only thing surprising is that SCOTUS has managed to hold on to this tradition when the "conservatives" in the legislative and executive branches barely even give lip service to it anymore.
posted by IshmaelGraves at 10:12 AM on June 23, 2005

Fuck. This. Shit.

justkevin: Your windmill scenario is nice and rosy, but if it is a private company, they should pay for the property without government intervention. Since, you know, as a private company, what they are ultimately interested in is profits. Do you really want a private business pushing you out of your home because the location of your residence will help them increase their profits? Not to mention you're getting pushed out with the help of the State, with more than likely some politician getting a pocket full of nice hard cash. But hey, all you have to do is move, right? Moving's fun!

Man, if this law had been around in the 30's, the movie Chinatown wouldn't have been nearly as dramatic.
posted by billysumday at 10:13 AM on June 23, 2005

One of my friends, who's actually a Green Party member, was just joking about how us Dems are always saying they need to vote Dem for the Supreme Court, but it turns out we all should have been voting Republican for the Supreme Court.
posted by boaz at 10:17 AM on June 23, 2005

One massive disagreement I've always had with my more liberal friends is the 'right to property' debate. Usually, this centers on public rights vs. private rights, but now, with the sale of our government to vested interests, we can see just how important property rights are.

Unfortunately, there is not a constitutional amendment to protect the rights of private property. Liberals who have long been against that idea may want to reithink their position in light of this ruling.
posted by chaz at 10:17 AM on June 23, 2005

While we're on the subject of Oliver Cromwell, I think it's worth adding a plug for one of the best books I've read this year, "I, Roger Williams" by Mary Lee Settle. While Cromwell figures only as a secondary character, nowhere else have I gotten such an astounding picture of that time, with all its raging political and cultural issues. Whence come rights of ownership and speech? What motivates the great actors in these dramas? What were the things that drove people to the far off shores of the New World from the old - and what did they find there?

A warm, rich, technically brilliant, emotionally affecting and historically fascinating book I highly recommend to anyone who actually read this comment to the end. We now return you to our regularly scheduled arguing about who on MeFi is really listening to the Revolution Rock.
posted by freebird at 10:18 AM on June 23, 2005

America sucks more every day.
posted by wakko at 10:20 AM on June 23, 2005

N.B., those who have this stuff going on in their community should look at the Castle Coalition for ways to fight city hall.

The wind farm example is easy-- property is taken for "public use" if the government owns the property or the public has a legal right to use it. If the wind farm operates as a regulated public utility or common-carrier, there can be a taking (if there's compensation). If the wind-farm windfall goes to, e.g., Pfizer, then no deal.
posted by willbaude at 10:25 AM on June 23, 2005

I had a similar reaction to papakwanz.

Its obvious why Scalia, Rehnquist, Thomas, and O'Connor dissented: the opinion deals a real blow to private property rights and expands the powers of eminent domain, which I presume none of them like in the first place.

What I don't understand is how the more "liberal" justices like Ginsburg, Breyer, and Stevens, could support this. I imagine that they support eminent domain in cases where land is seized for projects (parks, public transportation routes, etc.) that clearly serve a public interest. But I am stunned that they would issue an opinion allowing private individuals (or corporations) to use government power to seize the property of other private individuals. (And yes, I know that we already allow individuals to use government power to seize others' property as restitution for a crime, but this seems like a very different sort of case).

Can someone who knows more about the law/SCOTUS offer some (non-snarky) insight on this?
posted by googly at 10:27 AM on June 23, 2005

I think the liberals are going have to lick more than a few wounds after watching just how quickly the "greater good" argument can come back and bite them in the ass in unexpected ways.

Be careful what you wish for.
posted by vanadium at 10:29 AM on June 23, 2005

billysumday:

While I have nothing useful to contribute to this discussion, I just wanted to say that your last statement about Chinatown is HILARIOUS. If only because I saw that movie for the first time the other day. :)
posted by mrzer0 at 10:30 AM on June 23, 2005

Googly, the key phrase is "use government power". As long as the government has jusrisdiction, and as long as you think the state is the most important element of society, you will support this motion. Remember that they're not necessarily dealing in specifics, but in the generality that if the state deems something for the good of the people, it must be good. This faith in the state is misguided, in my opinion.
posted by chaz at 10:30 AM on June 23, 2005

Remember folks, when you're plotting the violent death of politicians or their corporate developer pals, use NEW code-words. Things like "direct action" are old hat, and will get you picked up by the feds pretty quickly.
posted by aramaic at 10:34 AM on June 23, 2005

Anybody remember what they did to Cromwell after he was dead?

They named my home town after him, for one thing.

Oh, and he was exhumed from Westminster Abbey and posthumously executed by decapitation.
posted by jesourie at 10:37 AM on June 23, 2005

This is a horrible opinion. I'm not surprised the way any party voted the way they did except Kennedy. The Court's reasoning is absurd and noting more than a naked power grab. And that, more than anything is the basis of this opinion.
posted by dios at 10:38 AM on June 23, 2005

will there come a time when corporations demand the vote?

Why vote when it's cheaper to rent?
posted by IndigoJones at 10:39 AM on June 23, 2005

I have to congratulate the Supreme Court, they have finally found a way to break through the wall of apathy and stimulate my capacity for outrage again. Well done there.
posted by cali at 10:44 AM on June 23, 2005

"It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area," Stevens wrote.

You're right, John Paul. The courts role is to interpret the Constitution, which reads "nor shall private property be taken for public use, without just compensation." And how anyone can say with a straight face that the New London project constitutes "public use" is beyond me.
posted by Kwantsar at 10:45 AM on June 23, 2005

And for what it is worth: if anyone cares to understand the difference between "an activist" judge and "an strict constructionist" then read the majority and dissent in light of the text of the Fifth Amendment.
posted by dios at 10:46 AM on June 23, 2005

And let me anticipate the response to my last statement: it is clear when a judge is being one or the other. No judge is only one or the other. A judge might be one in a particular case and the other in the next case. We often use the terms as political buzzwords, but in terms of interpretive theory, their application is usually clear. And this is a good example of one set of judges expanding the rule beyond its clear meaning and the other set refusing to expand the law.
posted by dios at 10:50 AM on June 23, 2005

It's interesting to see that Scalia and Rehnquist were on the same side, against this decision. That can't be a good sign.
posted by mathowie at 10:52 AM on June 23, 2005

But I am stunned that they would issue an opinion allowing private individuals (or corporations) to use government power to seize the property of other private individuals.

That strip mall or hotel or whatever will bring in a lot more tax revenue than a handful of residential owners.

Liberals pay a lot of lip service to the anti-corporation types, when in fact they are every bit as much in the pocket of big business as the conservatives. Consider this another wakeup call.
posted by dsquid at 10:55 AM on June 23, 2005

That strip mall or hotel or whatever will bring in a lot more tax revenue than a handful of residential owners. Liberals pay a lot of lip service to the anti-corporation types, when in fact they are every bit as much in the pocket of big business as the conservatives. Consider this another wakeup call.
posted by dsquid at 10:55 AM PST on June 23 [!]

It sounds like you are saying liberals are in the pocket of city and state government, not corporations, unless the tax revenue is going to corporations. Now THAT would suck.
posted by billysumday at 10:59 AM on June 23, 2005

What I don't understand is how the more "liberal" justices like Ginsburg, Breyer, and Stevens, could support this.

They didn't want to be "judicial activists".

From the majority decision:

"It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area."

I can see where the progressives on the Court were coming from, but as a liberal I still think it's a terrible decision.
posted by longdaysjourney at 11:00 AM on June 23, 2005

One of the few conservative streaks running through me is this issue about eminant domain.

When the land is taken for use that is not public (park, road/highway, etc), I'd rather see both an upfront payment on the *replacement* costs of the land (that is, if I wanted to start up a new stop and shop at a corner in a similar neighborhood with a similar location), PLUS some permenant cut of the revenue the new land provides, either directly, like a store on the property, or indirectly, as a parking lot for a Walmart. Essentially turn it into some sort of compulsory lease agreement.

I agree that in most cases, the appraisial system is rigged, and people dont get nearly what they should. I remember with a local highway widening, a gas station owner got something like $120,000 for his piece of property. The problem however, was that they didnt count the unground fuel storage tanks, which are very expensive. If he were to sell the gas station to someone who wants to use it as a gas station, it would be worth far more than $120,000. And you cant just drop a gas station on any corner, there are lots of regulations regarding those in-ground tanks. His replacement costs were $500,000 to build a new gas station (property+everything else - this was back in 1999 too), and the state only wanted to give him 1/4 of that.
posted by SirOmega at 11:00 AM on June 23, 2005

I saw the headline on CNN.com and was all ready to go ballistic on Scalia, Thomas, etc, only to learn they are on the side of the people and not big business, and it was the so-called "liberal" justices who wrote this abhorrent decision. Was anyone else a bit shocked by this?

I know! I can't believe I'm on the same side as Rehnquist, Scalia, and Thomas on this! I think I have to go lie down.
posted by scody at 11:01 AM on June 23, 2005

Just the latest conflict in the GOP base. Rich corporations vs. individual rights activists.

Give it a few more years and the Republican base will be so splintered that the GOP won't be able to win a race for dog catcher in Orange county.
posted by mygoditsbob at 11:01 AM on June 23, 2005

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Are we there yet?
posted by Jon-o at 11:01 AM on June 23, 2005

So, businesses can take your property, the govt can take your medical ganja, and you soon won't be able to burn flags. Oh, and no more porn, unless it's govt approved (proof of age).

What will be really funny is when a flag company can take the property of known flag-burners just to stick it to 'em. Or maybe drug companies that market painkillers will move to evict cannabis clubs and replace their property with billboards and pharmacies. Maybe Playboy will move to evict amateur porn developers instead of buying them out or competing. The possibilities are endless!

Good luck. I think I'm going to emigrate off the continent, just to be safe.
posted by tweak at 11:01 AM on June 23, 2005

Appalling.
posted by Scoo at 11:01 AM on June 23, 2005

Yeah Keswick, my thoughts exactly before I even started reading the thread.
This isn't about a highway, lake, or improvement. This is bluntly about MONEY, and that is what makes it 100% wrong.
posted by buzzman at 11:03 AM on June 23, 2005

It sounds like you are saying liberals are in the pocket of city and state government, not corporations, unless the tax revenue is going to corporations. Now THAT would suck

Liberal judges allow towns to bulldoze residential areas for strip malls. Tax revenues go up up up! Wow, look at all that new fundage for extra-big government programs. More opportunities to keep everyone sucking at the governmental teat.

But then again maybe I'm overly cynical.
posted by dsquid at 11:04 AM on June 23, 2005

Oh, and no more porn, unless it's govt approved (proof of age).

Actually I'm kind of intrigued by the idea of government porn. Are we talking Bush twins or Janet Reno? :)
posted by dsquid at 11:07 AM on June 23, 2005

dsquid, I had envisioned something more like Pornosec developing. It would be the most popular civil service job, to be sure.
posted by tweak at 11:09 AM on June 23, 2005

While legislation is the best means of limiting misuse of eminent domain, as Justice O'Connor suggests in her dissent; there are groups with the wealth and means to exert undue influence on the political process. Those groups will likely be able to mount a very effective campaign to block such legislation. This is a very loose interpretation of the Constitution. It's effects will center on the least powerful and the least able to defend themselves. Proponents of progress can argue up and down about a greater good, however those abstractions do not detract from the moral and ethical wrong being done here.

Land does not belong to the state. Individual non-perpetual land ownership was a socio-economic factor that lead to the American revolution. This is a travesty.
posted by BeerGrin at 11:14 AM on June 23, 2005

That strip mall or hotel or whatever will bring in a lot more tax revenue than a handful of residential owners.

Okay--so if I can prove that I can afford to raise your kid in a richer environment (i.e. private school, ballet lessons, expensive college, etc.) then I should be able to take said kid from you since the child would be so much better off financially.
posted by leftcoastbob at 11:14 AM on June 23, 2005

I knew there was a good reason for my being an objectivist libertarian atheist.
posted by nlindstrom at 11:14 AM on June 23, 2005

This case is a little more complicated than "the gubment tryin' to steeeel my land!"

In a lot of urban areas, there are enormous old "burned-out" factories that stand dormant from disuse or disinterest. When I lived in Williamsburg (Brooklyn), there were a couple next door to me, and I used to wonder Why? The real estate market was booming big-time, yet this dillapidated monstrosity sat vacant in my neighborhood where there was a serious housing shortage. Why?

Well, very simple. Because some asshole decided he wasn't going to redevelop the location, but would instead wait for some angel investor to come along and buy him out, renovate it and turn it into high-priced condos. But the asshole wanted too much money (considering a lot of those places needed complete gut-rehab, which would cost additional millions). So the place just sat their, unoccupied, a fucking eyesore and magnet for vandals. Right next door.

When the property owner refuses to maintain their property to the detriment of the neighborhood in general, well, imminent domain the motherfucker.

In Holland, they had a similar problem a few years ago. Property owners would sit on perfectly good real estate without rennovating it. Eventually, squatters would start to occupy the vacant dwelling. Well, years later, wouldn't you know that the property owners finally got around to taking a look at their places, and "Woah! What are these people doing here?"

The Dutch government, in its great wisdom, told the property owners to fuck off--or more specifically, that if the owner left the building to rot for more than a year and squatters took it over, the squatters kept the property. Fantastic incentive, that was.
posted by Civil_Disobedient at 11:15 AM on June 23, 2005

I'm not much of a SCOTUS junkie, but was anyone else surprised at who took sides on this issue? I saw the headline on CNN.com and was all ready to go ballistic on Scalia, Thomas, etc, only to learn they are on the side of the people and not big business, and it was the so-called "liberal" justices who wrote this abhorrent decision.

Not at all. In fact it was the conservatives (sans scalia) who voted for california's medical marijuana laws.

This should be a wakeup call for people who think the democratic party is the answer to all of our problems. They're not. Clinton was just as much of an authoritarian as bush, but at least with him things wern't stilted twoards the rich.

The "conservative" judges on the bench are the ones who belive in personal freedom, and the "liberal" ones are who belive in state and federal power.

It's a little obnoxious. That said, I think there's a legitimate worry that future judges could overturn Roe v. Wade.

Remember, personal freedom issues don't always corrilate with the "left" and "right"

---

On the other hand, how would you people feel about the government taking land from rich people and making it in small chunks to poor people? I doubt there would be as many complaints, and I don't think it would bother me as much. Something like this happened in Hawaii, I belive
posted by delmoi at 11:16 AM on June 23, 2005

I'm kind of intrigued by the idea of government porn. Are we talking Bush twins or Janet Reno?

[familyguy] Can't it be both? [/familyguy]

Janet Reno: She-Wolf of the SS. Now that I'd buy.
posted by ROU_Xenophobe at 11:23 AM on June 23, 2005

their->there (whoops)

This particular case is slightly different in that it doesn't require the reasoning to be strictly for "blighted properties or clearing slums." Now the reasoning can be general "neighborhood improvement" for example, to attract new companies (and new jobs) to an area. This is a very slippery slope, as I'm sure everyone is aware (is it in the community's interest to simply rid themselves of low-income housing altogether, for example, because bigger houses means higher property taxes for schools?)

The point, however, was that the justices weren't going to second-guess the local legislatures "public purposes," assuming that they would have a better understanding or grasp on what their communities wanted/needed than SCOTUS would.
posted by Civil_Disobedient at 11:28 AM on June 23, 2005

Civil_Disobedient: Your example of large abandoned buildings in urban centers is not what people are getting riled up about. This ruling, specifically, was about government taking the homes of people still living in them and giving those land rights to private property. So, yes, it is about "the gubment tryin' to steeeel my land!". For instance, in the case you brought up, it would be preferable for the citizens and the State to take away the properties of people who misuse them. It would also be preferable if everyone always did the right thing all the time. Unfortunately, government has yet to pass the "magic wand" law that makes everything better, so until then I'd rather have my individual rights protected.

Or should I add more bold phrases to that paragraph?
posted by billysumday at 11:31 AM on June 23, 2005

(private property = private companies)
posted by billysumday at 11:34 AM on June 23, 2005

Are there any developers out there who can find out where the justices who supported this live and convince the local government that the city would be better served with a strip mall down Ginsburg Lane?

I heard someone somewhere say, "Now we know how the Indians felt."
posted by Ron at 11:41 AM on June 23, 2005

In a lot of urban areas, there are enormous old "burned-out" factories that stand dormant from disuse or disinterest.

From CNN: The 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.... Susette Kelo and several other homeowners in a working-class neighborhood in New London, Connecticut, filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.

This isn't about urban blight. I think most of us are for cities being able to do something about abandoned buildings and preventing them from becoming meth labs.

Basically, even though the homes in question are occupied and in, um, non-slum condition, the riverfront property is valuable, and would earn more tax dollars as a resort and office complex. This should scare the snot out of anyone with potentially valuable but "underutilized" real estate. We are all one deep pocketed land development proposal from losing what the Administration keeps insisting should be our biggest asset.
posted by ilsa at 11:42 AM on June 23, 2005

Time to do away with democrat and republican politicians, and replace them all with decent human beings.
posted by five fresh fish at 11:46 AM on June 23, 2005

"A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves money from the Public Treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the Public Treasury with the result that a democracy always collapses over loose fiscal policy always followed by dictatorship. "

Alexander Fraser Tyler, 18th century Scottish historian,
The Decline and Fall of the Athenian Republic
posted by the Real Dan at 11:48 AM on June 23, 2005

Okay--so if I can prove that I can afford to raise your kid in a richer environment (i.e. private school, ballet lessons, expensive college, etc.) then I should be able to take said kid from you since the child would be so much better off financially.

You sound as though you think I approve of this ruling (I don't.)
posted by dsquid at 11:50 AM on June 23, 2005

Well, Dan, then it's a good thing we aren't a democracy and have a representative form of government where legislators don't just pass what the people say.
posted by dios at 11:51 AM on June 23, 2005

Damn, I hate agreeing with Scalia, but when it comes down to the libertarian vs. authoritarian axis, the lefties are sometimes on the wrong side.
posted by BrotherCaine at 11:51 AM on June 23, 2005

What's funny to me about the arguments in response to this thread is the parallel of this argument to taxation.

Taxation is a taking of private property to be given to whatever the government seems to believe would best service society. Just as the Court said the government can now do with land.

This IS socialism. Government allocation of resources.
posted by dios at 11:54 AM on June 23, 2005

Civil_Disobedient, I total agree with this sentiment. Property should be kept active...

I have a similar dispute with my upstairs neighbor... She claims to rent one of two parking spaces in the back but she never uses it (doesn't own a car, only has a visitor once or twice a month). If someone is coming to my place for a brief visit - to pick me up, or drop something off, stuff like that - I tell them to use her space. She often comes out and yells, I just say "well we are leaving in just a second", and that is that. My visitors are all freaked out by her, of course, but I just find it funny.

Some people tell me I am wrong, that I shouldn't use property that she pays for... I can't see it myself. To me she shouldn't be able to spitefully deny me the use of a resource she isn't using just because she has money to through around (well, maybe she lies about paying, I have never cared enough to check).
posted by Chuckles at 11:57 AM on June 23, 2005

Chuckles,

Under that logic, I should be able to commandeer my neighbor's Karmann Ghia that he keeps under a tarp because after all he isn't using a resource that I could be using to get to work in the morning. Under that logic, homeless people could take over vacation homes because after all the owner is only there a couple weekends a year.

I don't think property ownership meshes with that logic. The point of owning something is that the property is there if and when you want to use it. If I want to go camping, I want to know that my tent is still in storage, and not seized by somebody who thought they could use it for a while. It is not yours to decide your neighbor does not need the parking space she is (allegedly) paying for even though you never see a car there. For all you know, she likes to sacrifice chickens under the full moon there. None of your business, and not your (leased) property.
posted by ilsa at 12:05 PM on June 23, 2005

I know a bunch of people who went down to DC to watch this case in person, including this crazy libertarian guy who went in thinking it was going to be 9-0 in favor of the homeowners and came out thinking it was going to be 7-2 against (with only Scalia and Thomas dissenting). They seemed very hesitant at the hearing to overturn the Appeals Court without a very convincing line in the sand, and they did not feel that the ones put forward by IJ, i.e. not for private use, only on truly blighted neighborhoods., were good legal distinctions.

IMHO, part of the problem with this case from a legal perspective is that almost everybody agrees that eminent domain is necessary in some instances, but there are particulars that make them feel kinda weird about it. In New London, some of those particulars were:

Seized properties were turned over to a private development agency.
Rather than directly seizing land, the City Council empowered a private agency, the NLDC, to seize land.
The neighborhood had both blighted and non-blighted sections and they indiscriminately seized both.
Certain well-connected property owners, most famously a popular local restaurant and an Italian-American social club, were given sweetheart prices to sell out instead of being seized.

But none of these were individually convincing to the justices. So, in the end, even though those arguments added up to a strong political and moral reason for not seizing the land, there was no strong legal distinction to overturn the Appeals Court ruling on.

The 'for public use only' argument has been a fantasy ever since the railroads got built, so they weren't likely to overturn that. If anything, the 'non-blighted' argument was the only one that got serious consideration, and I guess that even that wasn't considered sufficient. At the hearing, one of the justices, Kennedy IIRC, said something like, "So if the area is depressed, the government has to wait around for it to become blighted before they can do anything?" Which, considering that New London has been depressed since whales stopped being the primary source of oil, actually sounds pretty stupid to me, but that's the kind of thinking that went on.

On preview: you know, dios, you and crazy libertarian guy should go out for beers if you're ever in New London. You guys both say that, but you seem to have missed that they specifically passed an amendment, the 16th, giving them the right to tax money. So, at the very least, a "strict constructionist" would have no problem with monetary taxation.
posted by boaz at 12:07 PM on June 23, 2005

the real dan, nice quote but "The Decline and Fall of the Athenian Republic" does not exist, nor did Alexander Fraser Tyler pen that quote. Here's more on the question of that quotes origins.
posted by geoff. at 12:09 PM on June 23, 2005

So dios, I assume you advocate zero taxation.

Because why else would you bother to make such an analogy, unless it was to be obnoxious?
posted by Snyder at 12:16 PM on June 23, 2005

The government gives, the government takes away.

Who do you think secured this land for people to "own"? It's disturbing that they're giving it to developers, but wasn't if kind of disturbing when they first took it from the original habitants?

"Mine mine mine!" cries the middle class. Wake up suckers.
posted by _sirmissalot_ at 12:18 PM on June 23, 2005

boaz, I didn't say that taxation was unconstitutional. I said both were socialism, which can very well be put into the Constitution. The arguments for both are the same. The arguments to be used against both are the same.

The "reasoning" behind the majority opinion is that they don't have any. This is a naked power grab. Now the government can seize money under a theory of efficient allocation of resources. What is really stupid is that they couch in terms of improving land. They effectively add a provision on the public use provision in the Constitution. Now it says that the government can seize land "if it will increase public utility." That qualifier was not ever in the Constitution until this day.
posted by dios at 12:18 PM on June 23, 2005

Snyder, I pointed it out because some people may not see the correlation.
posted by dios at 12:19 PM on June 23, 2005

This case is a little more complicated than "the gubment tryin' to steeeel my land!"

Not especially.

Well, very simple. Because some asshole decided he wasn't going to redevelop the location, but would instead wait for some angel investor to come along and buy him out, renovate it and turn it into high-priced condos. But the asshole wanted too much money (considering a lot of those places needed complete gut-rehab, which would cost additional millions). So the place just sat their, unoccupied, a fucking eyesore and magnet for vandals. Right next door.

How dare people invest their resources foolishly and overvalue their assets! We must put a stop to it immediately!

When the property owner refuses to maintain their property to the detriment of the neighborhood in general, well, imminent domain the motherfucker.

It's 'eminent domain.'

The Dutch government, in its great wisdom, told the property owners to fuck off--or more specifically, that if the owner left the building to rot for more than a year and squatters took it over, the squatters kept the property. Fantastic incentive, that was.

See, now that I kind of like.
posted by IshmaelGraves at 12:21 PM on June 23, 2005

Geoff wrote:

[[Corporations as persons (and thus citizens) has been the case since Santa Clara County v. Southern Pacific, 1886]]

Not entirely true. More info here.
posted by lexalexander at 12:22 PM on June 23, 2005

You have no rights beyond those the State provides you. You have no hope of security or property without the State. If the State decides to take your money and your land, then you are SOL.

The best thing to do is band together in a group, and demand representation. Use this representation, or "voting", to control who manipulates the instruments of the State.

Oh, wait. Y'all aren't into that. Oh well. Pack ur bags honey!
posted by ewkpates at 12:23 PM on June 23, 2005

boaz, I didn't say that taxation was unconstitutional. I said both were socialism.

Agreed, we should have the various political parties change their names to the Republican Sociailists, Democratic Socialists, Green Socialists, Libertarian Socialists and Dios Socialists, just so we can keep it straight.
posted by boaz at 12:25 PM on June 23, 2005

er, change Sociailists to Socialists on that first one. Unless Dan Quayle is going to be the new RS party chief.
posted by boaz at 12:28 PM on June 23, 2005

Might I suggest National Socialists instead of Republican Socialists?
posted by keswick at 12:32 PM on June 23, 2005

I guess the quote by Tyler is so useful that he had to be
invented, since he did not exist.

Thanks, Geoff. I figured the reason I could not find him in the
Britannica was because he was Scottish, and it did not
occur to me that the reason might be that he was ficticious.
posted by the Real Dan at 12:36 PM on June 23, 2005

Or should I add more bold phrases to that paragraph?

No, you should try reading the following post.

This isn't about urban blight.

You, too. My original post was in response to the anti-eminent domain folks. My second post specifically addressed the ruling.

How dare people invest their resources foolishly and overvalue their assets! We must put a stop to it immediately!

How dare you not-very-cleverly avoid the real issue!

It's 'eminent domain.'

No quotes necessary, and I noticed.
posted by Civil_Disobedient at 12:45 PM on June 23, 2005

Taxation is a taking of private property to be given to whatever the government seems to believe would best service society. Just as the Court said the government can now do with land.

One dollar is no diffrent then any other dollar. A dollar taxed today may be earned anew tommorow. There is no perminant loss through taxation.

On the other hand, When you take someones property, a home that they grew up in and has been in their family for generations, to build a strip-mall it's not something that they can ever get back. Yet, they are paid a supposedly fair market value for it. They don't lose any economic value unless there are some kind of shannanagans going on. That can be emotionaly difficult.

So of course the liberal response is empathy for emotional suffering, it has nothing to do with economic wealth.
posted by delmoi at 12:47 PM on June 23, 2005

This is an outrage.
posted by ZenMasterThis at 12:56 PM on June 23, 2005

The "empty factory eyesore" example Civil_Disobedient gives is already handled, and IMHO better, by homesteading-type laws. In most states, if you openly live on my property, without paying me rent or anything, as if it were yours, and if you do it for long enough (maybe a year, maybe ten years), then it becomes yours. This has nothing to do with eminent domain, and has more to do with common-law-type perceptions of what property is.

One benefit of this to joe homeowner is that it limits the risk that some transfer of title from 1890 will be discovered and invalidate my claim to the house I live in. It also keeps people from having to examine too closely the fact that pretty much all our land was stolen from the natives in the first place.

On preview: C_D, I think you miss the point of ilsa's and IshmaelGraves' objection to your argument. Your example is exactly about person A thinking that person B isn't using their property the way person A would like, and using the government to enforce their opinion.
posted by hattifattener at 1:08 PM on June 23, 2005

In most states, if you openly live on my property, without paying me rent or anything, as if it were yours, and if you do it for long enough (maybe a year, maybe ten years), then it becomes yours.

Unless you make bona fide efforts to have me removed from your land.
posted by oaf at 1:16 PM on June 23, 2005

Related in St. Louis.
As the last holdouts, so much for banding together. *sigh*
posted by badger_flammable at 1:23 PM on June 23, 2005

Well, keswick, your suggestion does have the advantage of being totally unfair, but let's at least admit they have graduated to true International Socialists.
posted by boaz at 1:31 PM on June 23, 2005

In this particular ruling, the (democratically elected) city officials had a redevelopment plan in place before the respective companies were even chosen; if I'm not mistaken, this was the crucial element that made the ruling go the way it did.

And hattifattener, my example wasn't about a single person objecting, it was about a neighborhood objecting. That's a big difference. I think that some people around here hold a very idealized concept of private property, but forget the social contract part of the equation. Your property is only your property so long as everyone else doesn't have a better use for it. As the saying goes, "this bypass has got to be built, and it's going to be built."
posted by Civil_Disobedient at 1:39 PM on June 23, 2005

Oliver Cromwell's government passed the law supporting the draining and expropriation of large sections of those fens, in 1649. This law was confirmed by Charles II in 1663.
posted by jb at 1:51 PM on June 23, 2005

Is it for the greater good if it destroys a neighbourhood?

Why not do infill development? Buy up houses of those who are willing to sell, and develop in character with the existing town. Just throwing malls and parking lots won't bring the town out of it's blight - it just creates a new one.
posted by jb at 1:52 PM on June 23, 2005

The interesting thing about this ruling - and forgive me if someone already mentioned this - the Supreme Court Conservatives O'Connor, Rehnquist, Scalia and Thomas were not in favor of the ruling.

While the Liberals on the Court John Paul Stevens, Kennedy, Souter, Ginsburg and Stephen G. Breyer were in favor of it.

I guess in the eyes of the more liberal factions private property is not as sacred as good comercial profit potential.
posted by Rashomon at 1:57 PM on June 23, 2005

As a liberal, I never thought I'd be siding with Scalia and Thomas on any issue. There's a huge eminent domain battle going on in my county, only it's the opposite... the Republican county commisioners decided to seize highly desirable property from a private developer in order to build a park, and are trying to pay him about a quarter of what the land is worth. While I like parks, there's a very large park less than a mile down the road (and with a better view of the scenery, too). What's particularly frightening is watching how they gamed the recent tax reassessments, valuing the seized property at about a third less than last assessment, while most if not all of the other property in the county went up 25%.
posted by MegoSteve at 2:01 PM on June 23, 2005

My neighborhood is history. Most low-rise neighborhoods in Manhattan are, now. Did they define what a "Development" is?

This is really appalling.
posted by amberglow at 2:01 PM on June 23, 2005

Rashomon, your comment lives up to your screenname. Other versions agree that the voting breakdown is particularly interesting.
posted by googly at 2:02 PM on June 23, 2005

When the property owner refuses to maintain their property to the detriment of the neighborhood in general, well, imminent domain the motherfucker.

CD, some of live next door or on the same block as those kinds of buildings--even if well-maintained, the city can now take the whole block, and the whole neighborhood. Imagine what a Robert Moses, who ruined many neighborhoods to build highways, and tried to get more, would do with this kind of law.

Think about Bloomberg and his Olympic "dreams"--he can now take the railyards and every single building around it, for "development". In every city and town, they can "develop" to their heart's content, and it won't just be the abandoned factories, but whole blocks, with real people and families living on them. Got a working-class neighborhood close to a downtown business district? Not anymore you won't.
posted by amberglow at 2:10 PM on June 23, 2005

*polishes firearms*
*buys ammunition*
*lies in wait*
posted by Smedleyman at 2:35 PM on June 23, 2005

Civil_Disobedient: There was an earlier thread on MeFi about the LVT, which effectively prevents the fucking eyesore and magnet for vandals problem.

You should read it. I bet Georgist economics would appeal to you.
posted by Kwantsar at 2:36 PM on June 23, 2005

This happened (and is still happening) in Colorado Springs, too.
Our city council is mostly made up of developers, ex-developers, and buisinessmen. The developers have a bought and paid for city council going for them. One of the biggest, Classic Homes, has been given authority to build sprawling suburbs all the way to the horizon. They get free (city owned) utilities during construction, while the city (me) pays for all the utility hookups, lines, sewer system, roads, schools, fire stations, etc. Classic is buying up land at $1500 an acre, putting four homes on it at a cost to them of $45-80,000 and selling them for $150,000-$500,000 a piece.
If you had a house out on a dirt road that gets in the way of these new suburbs, they either give you low dollar compensation, or condemn your property, and pave over it.
Downtown, too. There was a 'blighted' neighborhood that was one of the original streets when the town was founded. Mill St. Those that got lucky got bought out, those that fought city council, got their property condemned, and forced out by the sheriff.
They put in a park. Something that had been planned for 8 years prior, to make a 'Confluence Park' along the creek that runs through town. Denver has one, so we are slacking!

Another whole area for targeting is where the "old" highway used to run through town on the north side (north Nevada). It's the next exit down from the Air Force Academy entrance, and has buisinesses and restuaraunts that have been in the same place for 35-50 years. City council has already stated that they think this whole 1 1/2 mile of road would be a great place for another wal-mart/Home depot/associated strip mall and starbucks spot. And a Sam's Club, too, cause we only already have 4 in town.
The local indy paper has run a couple front page stories bringing attention to these buisiness owners, but, you know.. Progress makes Profits.

*carves names onto brass bullet casings*
posted by Balisong at 2:41 PM on June 23, 2005

Civil_Disobedient writes "Because some asshole decided he wasn't going to redevelop the location, but would instead wait for some angel investor to come along and buy him out, renovate it and turn it into high-priced condos. But the asshole wanted too much money (considering a lot of those places needed complete gut-rehab, which would cost additional millions). So the place just sat their, unoccupied, a fucking eyesore and magnet for vandals. Right next door."

The the heck business is it of yours what the owner does with his land as long as no one is being hurt? Sure bring him to court for creating an attractive nusence or something, but to rob him just because you don't like the look of the building is wrong, wrong, wrong. Personally I can't think of anything more ugly and useless than a suburban front lawn, talk about you "eyesores". And they are everywhere. Heck we've been on watering restrictions the last couple of days and there were people out watering their lawns (despite record rain falls the last three weeks) even though that could mean no water to drink.

I wonder how this relates to all those enviromental organisations who buy up land to prevent it being developed by attaching restrictions to deeds. Can deed restrictions trump eminent domain under these rules.

dios writes "Taxation is a taking of private property to be given to whatever the government seems to believe would best service society. Just as the Court said the government can now do with land."

diso I know your being deliberatly obtuse but it isn't the same. There'd be a lot less outrage if the goverment was taking the land for something a little more obviously benifiting the public like a road, bridge, or park. Increased tax base (plus huge developer profits) seems a little too abstract.
posted by Mitheral at 2:48 PM on June 23, 2005

Expect anyone who tries to defend their land in such a way to be labelled a "terrorist," too. Mailing lists of people interested in property rights will be labelled terrorist cells.
posted by keswick at 2:57 PM on June 23, 2005

If "public use" in the Fifth Amendment means the opposite, what other parts of that amendment now mean something totally different? Or does it only matter if the definition can be twisted to favor the rich?
posted by tommasz at 3:06 PM on June 23, 2005

Even our language reflects how long this kind of thing has been going on in this country, and it's getting more frequent. SCOTUS was finally bending to 173 years or so of American tradition. At least last year Michigan realized its error and said "Oops".
posted by dilettante at 3:07 PM on June 23, 2005

The Dutch government, in its great wisdom, told the property owners to fuck off--or more specifically, that if the owner left the building to rot for more than a year and squatters took it over, the squatters kept the property. Fantastic incentive, that was.

American law already allows that. And isn't the same process called squatter's rights in Britain?
posted by dilettante at 3:18 PM on June 23, 2005

dios is totally wrong, this isn't socialism. This is corporatism. This is not taking away property from individuals and redistributing it among the masses. This is taking property from individuals and handing over to other individuals, joined in a business venture, with more pull.
posted by papakwanz at 3:41 PM on June 23, 2005

Both amberglow and boaz got the points that interest me

What is "public good" ...is it a purpose, an abstract goal of making the majority of my citizen happy ?

If so, do I do public good when I don't shit in the middle of the street ? Some would argue I do public good by not
littering the street that's maintained at public expense, other would argue I don't because by using toilet I'm using
water transported by public plumbing, other would just call me indecent and have me thrown to jail because pooping
in public street offends "public morality".

Maybe we could agree on a definition that is not opinion based..maybe "public good" good be a good/service that approximates reasonably or closely adheres some requisites :

1. the regulations concerning its use, maintenance and access are not secret and made constantly avaiable to anybody requiring it
2. any citizen can access the good or the service and obtain the benefit it gives
3. any citizen shall pay part of its fixed cost and then pay accordingly to how much it consumes it

...and so on.

Now it seems that "eminent domain" instrument can be used to confiscate and underpay private property for PRIVATE economic developement that is supposed to generate an INCREASE in tax revenue and creates new jobs.

That could happen for ...one year ..or one day that the new privately owened business is successful and some extra
money is made by the community ..but there's no uarantee that this will happen in the future. Also nobody can be held liable for not producing a sufficient amount of taxable revenue....additionally it's very very hard to see behind the smoke screen of accouting...one can't also step into a private property and question the owner about his action...while one could actually question and challenge public action

In practice one private economic developement could end up in $1 additional tax revenue and 1 additional job...that would still fit the definition of economic developement.

Even more ridicule, the gross underpayment would probably be paid by STATE coffers..that's State investing into promises of profit. Now if this isn't an irrational belief that PRIVATE is _always_ better and that MARKET can't do any wrong .I don't know what it is.Or I know...it's pillaging value, financing future failures using public instruments rather then more expensive private ones...why pay a lot when I can just claim "economic developement" hand some politician some money to recognize some developement ?

Why sustaint RISKS when I can offload them on public with some cheap promises of job and profit ? It's still more privatizing of profit and value and socializing of costs and risks...the corporation model.

BUT There's no guarantee that it will produce the expected results that SOME corporation delivered in the past or that the results will be good...yet people are being convinced this model is the ONLY one that one should bet his life and savings on...and if they don't agree then the State will throw State money into private coffers, cause public only care about their wallet.

Yet blind supporters of private initiative just claim that they're not supposed to deliver what promised, they should just enjoy limited responsability in the name of "freedom"...these ones actually are damaging the TRUE enterpreneurs that had an idea of actually developing something so risky they had to offload some of the risk on the public that commisioned risky works.

Course if you expect politician to solve this mess, you're daydreaming.
posted by elpapacito at 3:45 PM on June 23, 2005

dios is totally wrong, this isn't socialism. This is corporatism.

bingo.
posted by mr.marx at 3:53 PM on June 23, 2005

Why not do infill development?

I'm wondering the same thing. No way is a strip-mall, for example, going to be an improvement, even if there are some added minimum wage jobs added to the workforce.

some of live next door or on the same block as those kinds of buildings--even if well-maintained, the city can now take the whole block, and the whole neighborhood.

amberglow, to a degree I agree with what you're saying. In Robert Moses' case, the people were able to successfully show how the social value outweighed the city's (short-term) interests. An even better example would be Boston's West End, which was demolished for something that is now demolished itself, thanks to the Big Dig. Thousands of families displaced, and entire historical section of the city razed, all for nothing.

The the heck business is it of yours what the owner does with his land as long as no one is being hurt?

The problem is in the clause as long as no one is being hurt. The argument many inner-cities make is that a decayed shell of a building is hurting the neighborhood.

Increased tax base (plus huge developer profits) seems a little too abstract.

Worse, as I said before, it creates a really slippery slope. What if someone could show that you could increase the tax base, by knocking down all the black people's homes?
posted by Civil_Disobedient at 4:00 PM on June 23, 2005

One uncomfortable fact that is almost entirely unremarked on in eminent domain discussions is that residential properties are never self-supporting areas for city governments tax rolls; any bloc of residential housing will, without fail, cost the government more in schooling, waste removal, etc. than it will produce in tax revenue. Commercial property, OTOH, provided they don't go too crazy with the tax incentives, is a huge tax boon; they don't require schooling, they use private waste removal, etc. Cities need commercial development, or they'll go broke, plain and simple.

Unfortunately, this creates a constant pressure among city governments to bring in as much commerce and industry as possible and relegate as much of the residential areas to surrounding towns, whether through creative zoning, tax incentives or even eminent domain. There's a constant, and admittedly pragmatic, impulse, thinking, 'Well, if we can get a hotel, a Pfizer headquarters, a resort, etc. where this neighborhood is, we can afford new schoolbooks, not to cancel music and sporting events, not to introduce trash pickup fees.'

knocking down all the black people's homes?

That's the rub; you can knock down almost any block of homes and it'll be a net gain for the city's finances. But don't touch that Olive Garden.
posted by boaz at 4:21 PM on June 23, 2005

I HATE Olive Garden.
posted by Balisong at 4:43 PM on June 23, 2005

But doesn't the Supreme Ct. Decision explicitly not care about the social value? Isn't social value no longer an option?

We've had eminent domain here for a long time, but now it's going to be like a feeding frenzy. ... Unfortunately for all of you, New York is the worst state in the entire country for abusing the power of eminent domain. And it is the worst in a number of different ways. It has some of the most condemnations for private parties. It came out to about, that I got from news articles, about 146 threatened or were actually condemned. I found 14 projects in, again just in the news, so I am sure there are lots of others that I don’t know about. The courts in New York are utterly deferential about eminent domain. They will sanction anything, and I think you have been hearing today in the legal session about other situations where the New York courts just do not care when people’s rights are blatantly violated. Eminent domain is also one of those. Now, I do think that the changes that are happening judicially will come to New York, but they are not coming soon unless something radical changes.
New York has some of the most spectacular failures of eminent domain projects. Two that I know about are in New York City. The New York Stock Exchange wanted to build and the court said, hey, no problem. Take those people’s businesses. Take those apartment buildings. We don’t care. Good idea. The New York Stock Exchange is important. We can’t let them move to New Jersey. Well, the New York Stock Exchange didn’t move. So all of the people in the apartment buildings left, the businesses closed, and then there was no building. So then they had to start facing this. It was just a mess, with huge payments by New York, by the Empire State Development Corporation and the City to try to make it up to the owners and compensate them. It is a disaster.
There was another one on Friday, as you, I am sure, have heard about. The Empire State Development Corporation, again, was condemning a whole bunch of businesses for a new New York Times headquarters, and those people who owned the businesses fought. They lost. The Court of Appeals, New York’s highest court, refused to hear it. The U.S. Supreme Court refused to hear it. So they closed up shop, the businesses ended, and on Friday they announced they don’t have funding for the project. So they are not going to build it until they find some funding, which could be never or it could be another ten years. So that, too, is another example. ...

What is there now for all developers to use eminent domain? It's certainly easier than negotiating with multiple owners.
posted by amberglow at 6:02 PM on June 23, 2005

oop--What is there now to stop all developers from using eminent domain? There was only a little to begin with.
posted by amberglow at 6:04 PM on June 23, 2005

So they closed up shop, the businesses ended, and on Friday they announced they don’t have funding for the project.

Probably because they spent all their money buying About.com.
posted by gsteff at 6:11 PM on June 23, 2005

It's still a giant empty lot, at one of the busiest intersections in the city (opposite Port Authority and fronting on 42nd St.).

from scotusblog, this seems to be the new standard for eminent domain taking: ...courts defer to state and local proffers of public purpose or public benefit unless the owner can prove that the purpose/benefit was pretextual and that the government actor that ordered the condemnation was in the developer's back pocket. ...
posted by amberglow at 6:41 PM on June 23, 2005

i skipped the last eighth of the thread, but C_D is right. here's the quote from a poster at dKos (of all places) that convinced me:

"Yours are GOP talking points... as I wrote in on of the many diaries on this topic, to take your point of view, the court would need to assume that all local governments are corrupt and that judges are all objective, which would basically mean giving up on democracy entirely.

So this isn't about platitudes, it's about the most basic liberal value-- that governments should pursue the public good for the common wealth .... You give up on that idea and the democratic party no longer exists. We might as well just write our checks to the GOP and sign up to help Karl Rove in 2006.

Without eminent domain, in particular, we would have no federal transportation infrastructure like highways or railroads. And without a federal transportation infrastructure, goods would be transported by horse and buggy, business could not transport and sell their products, and many of us would not have jobs.

But conservatives and the GOP refuse to admit to this reality-- they imagine they somehow all got where they were without any public spending or any coherent conception of the public good. This is a very important difference.

Finally, on the specifics of the case, why would judges be better equipped to make decisions about what constitutes the "public good"? You can pay off judges just as well as local politicians. Also, that strikes me as a very dangerous assumption in the context of an increasingly right wing court system."
posted by spiderwire at 7:05 PM on June 23, 2005

also, fwiw, i'd encourage everyone to read up on Kennedy's dissent before kvetching about this any further. the court did set limits on what is and is not considered a public good (local regulations must be upheld, and those regulations can be brought up in court as well -- specificaly where there's a possibility of impropriety) that are, imo at least, pretty reasonable.

please don't oversimplify this. this isn't "omgwtfr2d2bbq stevens and ginsburg and all the liberal justices said walmart could take my house likeWTF." this case was chosen very specifically by libertarian groups to provoke exactly this sort of reaction amongst both liberals and conservatives. read the case more carefully before you take the bait, hm?
posted by spiderwire at 7:12 PM on June 23, 2005

That's Kennedy's concurrence, not dissent.

But the theory is that since he's obviously the swing vote, cities and lower courts better pay attention to what he has to say or they will find themselves on the wrong side of that swing vote later.

It sounds like Kennedy would require some sort of good-faith effort of the part of cities to actually plan out the development before they commit a taking. But such planning could be faked, IMO.
posted by falconred at 7:53 PM on June 23, 2005

That's Kennedy's concurrence, not dissent.

my typo, sorry.

But such planning could be faked, IMO.

my reading is that he said that even the possibility of impropriety would warrant an investigation. i like that standard.

The guy at Kos is setting up a false dilemma that you are swallowing hook, line, and sinker.

um, did you read the decision? it doesn't say that walmart can take your house if they want to. it maintains a limit on the power of the state, it just makes the property-rights road two-way rather than one-way in favor of corporations. that's a good thing.

last i checked, wal-mart's stock wasn't exactly exploding at the news that they can now come and seize the houses of all these poor landowners. curious, that.
posted by spiderwire at 8:26 PM on June 23, 2005

Yours are GOP talking points... as I wrote in on of the many diaries on this topic, to take your point of view, the court would need to assume that all local governments are corrupt and that judges are all objective, which would basically mean giving up on democracy entirely.

So this isn't about platitudes, it's about the most basic liberal value-- that governments should pursue the public good for the common wealth .... You give up on that idea and the democratic party no longer exists. We might as well just write our checks to the GOP and sign up to help Karl Rove in 2006.

What an unbelievably stupid false dichotemy.

"If you oppose any limit to state power, you are against democracy, and not only that, you might as well be a Republician!"

I don't see why ensuring that the state simply can't take anyones property simply because they say its in the common good, with no frame of reference beyond what the state wants, is "...giving up on democracy." There's the idea that governments should persue the comon good, and then there's blithely accepting that whatever the government does is good. I'd say that its also a "liberal value" that the government shouldn't screw over individuals in pursuit of a nebulous "common good."

I bet dollars to doughnuts that the Kos poster dosen't think that the Bush admin is doing anything for the common good, even if the admin says it is. "It's obviously not for the common good, duh!" I think the anonymous Kos poster is the one parroting talking points here.

On preview: ...it just makes the property-rights road two-way rather than one-way in favor of corporations.

What the hell does that mean? It kinda looks like double-talk to me. I don't see how this case was "win" for individual land-owners and businesses over corporations.
posted by Snyder at 8:37 PM on June 23, 2005

One uncomfortable fact that is almost entirely unremarked on in eminent domain discussions is that residential properties are never self-supporting areas for city governments tax rolls; any bloc of residential housing will, without fail, cost the government more in schooling, waste removal, etc. than it will produce in tax revenue.

That is unsubstantiated BS usually floated by anti-growth crowds in an attempt to get the public to oppose new development (i.e. artificially increase the value of land already developed, better known as the "I've got mine Jack, tough for you" philosophy).

It doesn't even pass the laugh test -- because if it was true, no city would be sustainable. There are tens of thousands of examples to the contrary.

The argument only holds up if you assume that every residential property has two or three kids in the school system. But that isn't the case. I've seen a study that shows that only roughly 30% of housing is occupied by people who have kids in public school. I can't substantiate that, but it at least has some face credibility to it.

Remember, people tend to live in housing from age 25 to 75 (50 years) but the span of having your 2.2 kids in the system is maybe 15-20 years at best. That leaves you 30-35 years where you pay more than you consume, and those years are paid for at tax rates that are higher than when your kids were in school. Plus, how many childless families are there? How about a family splintering into two households due to divorce, so they now occupy two houses instead of one?
posted by RalphSlate at 10:17 PM on June 23, 2005

Fascinating discussion folks.

I'd like to point out something. Once upon a time in America, there were two factions. Democrats (liberal) and Republicans (conservative). We swung back and forth, and some idea of balance was obtained.

Something/someone messed this up. We're missing the benefit of healthy conservatives. The Republicans abandoned conservatism for corporatism while the Democrats moved to the right in some ways, and not others.

I listen to talk radio (Air America). Every now and then something comes up, someone quotes the likes of Ike Eisenhower or even Barry Goldwater. It becomes real clear how badly we're missing the voices of real conservatives. This is a great subject to illustrate the point.

Snyder said:
I'd say that its also a "liberal value" that the government shouldn't screw over individuals in pursuit of a nebulous "common good."

No, its not a "liberal value", its an AMERICAN value. American values belong to neither ideology. This polarization of American politics is killing America. The neocons must go, preferably to prison, and we must get back to American values.
posted by Goofyy at 11:10 PM on June 23, 2005

Goofyy: I agree, I don't believe it's simply a "liberal value." I was quoting and counterpointing the Kos post spiderwire was reposting (the "...most basic liberal value..." part). I was criticizing the appeal to a strawman of ideological purity in defense of a knee-jerk reaction. In other words, he was saying, "If you disagree with me, then you obviously don't believe in government providing for the public good!"

I agree wholeheartedly that American values have been largely thrown to the wayside not only by both parties, but by the two major ideologies (the "leftists" and "right-wingers," or whatever you want to call them,) in general.
posted by Snyder at 11:45 PM on June 23, 2005

Snyder: I wasn't jumping on you but magnifying in agreement :-) That's why it came last, instead of first (and I noticed that, and wondered about it).

I begin to think a better tactic to fight the neocons might be to start talking more about the great conservative leaders of recent times, to constantly illustrate exactly how the current crew of nutters are NOT conservative. Its astounding how "liberal" some of those guys of the past sound by today's standards!
posted by Goofyy at 1:37 AM on June 24, 2005

"knee-jerk reaction"? are you fucking kidding me? you have the nerve to say that while making "wooooo scary" noises about the big bad "State"? hi pot, i'm kettle, you're black.

snyder, have you even read the decision? do you honestly think that the court would be stupid enough to say that the local government could take your property at any time they wanted with no possibility of recourse? these aren't exactly C students like El Presidente. with all due respect, pull your head out of your ass before you try to talk out of it.

Kelo actually articulates very specific limits on what a local government can and can't declare as a public good. part of the reason those petitioners (who, again, were cherry-picked by a hard-right libertarian interest group) lost is that the town put the new regulations into effect well ahead of time and in accordance with the political process. your invocation of "with no frame of reference beyond what the state wants" indicates that either you haven't read the decision or didn't understand it.

furthermore, your reference to the nebulous, unaccountable bogeyman "state" that can do whatever "it" wants is a betrayal of liberal values. the most basic premise of liberal governance is that the state (i.e., a government of/by/for people) has the ability to make tough decisions in the interests of the common good, and that there should be an accountable legislative process set up to provide boundaries for those decisions. Kelo reaffirms the necessity of that accountability, and Kennedy's controlling opinion further specifies those boundaries.

a problem with the accountablity of the state and the people running the state is NOT the same thing as the breadth of the power granted to the state. you are concentrating on a potential symptom, not the problem. it's not the court's responsibility to make the assumption that all local governments are corrupt and must be protected for their own good -- the way that works is that you petition the corruption on an individual basis, in the courts, in accordance with due process.

all the court said was that it didn't have the authority in this case to set the baseline for what a community decides collectively and fairly is in its public interest. it explicitly said that it should still hear cases where that process is being abused in any way, but that wasn't the argument made here. the Kelo petitioners were arguing that even if the community went through the due process, and even if what they were doing was in the objective interests of the community, their private landowner rights trumped that legitimate exercise of local legislative power. the court rightfully told them where they could stuff it.
posted by spiderwire at 9:35 AM on June 24, 2005

oh, and here's why a "two-way street" is good.

prior to Kelo, Walmart can come into a lower-class neighborhood, buy up 90% of the homes, and use eminent domain to get the rest of the homes declared "blighted areas" and have them seized. they've done this many times, and Kelo doesn't change that or make it any less easier for them. it's a threshold issue. Walmart can have their way regardless of Kelo.

part of the reason this is so problematic is that it's a one-time investment for Walmart, even if they have to buy out the city council, and it's usually done in stealth mode. and, once they've done it, their private property rights mean that it can never be rolled back. (it's a lot easier to get a few houses condemned than a Walmart. so, knowing that they're secure, Walmart can build their store with impunity. even if the town manages to vote in an ultra-liberal planning council next time around, there's nothing that can be done.

what Kelo does is give reversibility to all private property rights, not just those of the individual. if the community later decides that Walmart is an economic risk (which it is), they have the ability to seize that property and redevelop it. since Walmart can't control every city council indefinitely, it makes their investment much less secure and lucrative, and gives the community a mode of recourse that didn't exist before.

it also means that all the Walmart stores already built are now subject to a similar risk and that there's now upward pressure on WalMart to treat their communities better than they do right now. despite the fact that, according to all you doomsayers, this decision should be a godsend for big-box retail stores like wal-mart, i pointed you to their stock earlier because it's been dropping ever since Kelo was announced. same with Target, Bed Bath & Beyond, and Home Depot, all of whom were supposed to be the wild beneficiaries from this decision. (note also the huge spike in volume of trades in those companies.)

add in to all that the Kennedy's decision mandates judidical review if there's even the possibility of impropriety, which wasn't the case before and lead to a lot of big-box stealth takeovers of local zoning boards, and i don't see how any of y'all can possibly be arguing that this is anything but a win for our side.
posted by spiderwire at 9:47 AM on June 24, 2005

sorry, that first graf should be "Kelo doesn't make it any easier for [Walmart to do what they do already]"
posted by spiderwire at 9:49 AM on June 24, 2005

That is unsubstantiated BS usually floated by anti-growth crowds in an attempt to get the public to oppose new development

Well, I got it from the appendix of Edge City: Life on the New Frontier, which seems to be excerpted here. The numbers given are that for each $1 in taxes, a city will on average spend $1.22 on services on residential areas, $.32 on commercial areas and $.07 on farmland. But, now that you mention it, I'd kinda like to see the underlying study for that too. I don't even know what you're talking about claiming this is used to oppose new development; to me, it makes new development sound essential, as long as it's not purely residential.

Remember, people tend to live in housing from age 25 to 75 (50 years)

Yes, yes, I remember well how at 25 I got to move out from that sewer pipe into actual housing, but I think most normal people live in housing their whole lives.[/just joshing ya]
posted by boaz at 9:50 AM on June 24, 2005

Local corruption isn't a sporadic phenomenon or noise in the system. It's not "a potential symptom."

It is the mechanism of local politics. In fact, erase "the mechanism of."
posted by sonofsamiam at 9:58 AM on June 24, 2005

spiderwire writes "if the community later decides that Walmart is an economic risk (which it is), they have the ability to seize that property and redevelop it. "

Ya, like that'll happen. The only Wal-Mart that I'm aware of being shutdown even though they still had a market was the one that got unionised in Quebec. Unless they start peddling hard core pornography they seem to be safe from municipalities once established.

spiderwire writes "despite the fact that, according to all you doomsayers, this decision should be a godsend for big-box retail stores like wal-mart, i pointed you to their stock earlier because it's been dropping ever since Kelo was announced. same with Target, Bed Bath & Beyond, and Home Depot, all of whom were supposed to be the wild beneficiaries from this decision. (note also the huge spike in volume of trades in those companies.)"

Big box falling stock prices are probably much more due to the unsustainability of their business model in the face of rising transportation costs than any small effect of easier access to real estate.
posted by Mitheral at 10:09 AM on June 24, 2005

I don't even know what you're talking about claiming this is used to oppose new development; to me, it makes new development sound essential, as long as it's not purely residential.

boaz, I live in Massachusetts, and we have this thing called "Proposition 2.5". It limits the amount of tax revenue that a town can raise from year to year via property taxes.

Whenever a town is faced with developers wanting to build housing, they trot out the "housing doesn't pay for itself" argument. They claim that no new housing should be allowed because the new housing will make the town lose money, since each new house will be teeming with kids that cost $10k apiece to educate.

They oddly also trot out the "business doesn't pay for itself" argument since, often, businesses are valued at less than housing per acre, and the "impact of business" is wielded like a sword (traffic, for example) as is the "it will bring undesirables to town" argument.

Treating citizens as "customers" leads towns to enact laws that push the least profitable "customers" out. In Massachusetts, the least profitable resident is typecast as Hispanic, with three or more kids, working a low-level job.

If you haven't noticed, little development goes on in Massachusetts, and therefore housing costs are among the highest (and most segregated, BTW) in the nation. Communities won't tolerate developments that are priced at less than $400k per unit.

The result in Massachusetts is a lot of town with very high wealth, a few cities with almost no wealth, fewer and fewer opportunities to move between the two, and more "mine mine mine" from the wealthy communities in the way of taxes and the like.

But then again, I guess this just mirrors the entire country.
posted by RalphSlate at 10:45 AM on June 24, 2005

sonofsamiam: Local corruption isn't a sporadic phenomenon or noise in the system. It's not "a potential symptom."

It is the mechanism of local politics. In fact, erase "the mechanism of."

get a clue. the SC can not make a decision based on the fact that even most local governments are corrupt (which is a falsehood and a rhetorical boogeyman, but that's beside the point). when making a decision about the proper extent of legislative powers, they have to rule based on the assumption that the system is working properly. that's why O'Connor's opinion is BS. the SC's reponsibility in this case was to uphold what localities do through proper measures while reaffirming the necessity of keeping those measures fair, which is exactly what they did. again, go read Kennedy's controlling decision. this case wasn't about fairness in a specific hypothetical situation, it was about the proper general limit of legislative powers.

Mitheral: Ya, like that'll happen. The only Wal-Mart that I'm aware of being shutdown even though they still had a market was the one that got unionised in Quebec.

yes. this proves my argument. once walmart is in place, they're almost impossible to leverage out, because the extant eminent domain standard before Kelo was practically designed to work solely to their advantage (by letting them get rid of individual resistant homeowners by condemning their houses) and never to their disadvantage (because once wal-mart has land, private property statutes mean it can't be reclaimed). that's why i called it a one-way street.

look, Kelo won't make a difference w/r/t whether or not Wal-mart can get a few houses condemned to build a store. it does explicitly change the recourse that a community has after the fact and during the Wal-mart stealth acquirement to get Wal-marts out -- that power didn't exist prior to this.

Mitheral: "Big box falling stock prices are probably much more due to the unsustainability of their business model..."

what? you're citing a long-term issue that doesn't have anything to do with the one at hand. those stocks have been dropping in the two days since Kelo was announced. note that lots of people thought it would go the other way -- not that before Kelo that big-box stocks were mostly rising. that answers your specious "business model" argument on-face. if you were right, they should have been dropping for a while, hm?

look, i'll grant you even more latitude with that statement than it deserves, and point out that yes, crude prices have been weighing on the market in the last few days, and given big-box' position as a tertiarily-related market to oil, we should expect to see this kind of slowdown in all those stocks. but note that (A) the drop mirrors the market as a whole, and that (B) even secondary industries like UPS" and Federal Express aren't as heavily affected.

my point, which you might have understood if you'd read the last article i linked in the parent post, is that according to you, this decision should be a boon for all the big-box retail stores. new powers of eminent domain should secure billions in current investments, as well as open up all kinds of new lucrative areas for stores. and yet, stocks for all the big-box retailers are performing at or below market level.

you're claiming to be smarter than the Supreme Court and Wall Street put together. get a clue.
posted by spiderwire at 4:01 PM on June 24, 2005

**should be "note that before Kelo most big-box stocks were rising"
posted by spiderwire at 4:03 PM on June 24, 2005

you're claiming to be smarter than the Supreme Court and Wall Street put together. get a clue.

You sure you're a liberal? ;)
posted by boaz at 4:57 PM on June 24, 2005

You sure you're a liberal?

:D

well, ok, that could be qualified with "the liberal half of the SC."

as for wall street, i don't think it's all that illiberal to argue that if this really was such a boon for Wal-Mart, all the weasels would be jumping on board for the plunder to be had. (not to mention that markets have been shown to be pretty good predictors, iirc.)

although maybe i need to learn how to take a joke. ;)
posted by spiderwire at 5:57 PM on June 24, 2005

spiderwire writes "if you were right, they should have been dropping for a while, hm"
Walmart looks to be on a pretty good slide these last six months. So is Home Depot. A 5 day trend is pretty meaningless. The Kelo decision is tiny ripple in the cost of doing business for someone like Wal-Mart. It might be more important for big developers because it may push the real estate bubble a little higher. In the mean time I sure won't be holding my breath waiting for a Wal-Mart or Home Depot to be converted into an office complex or city park thru eminent domain. Granting it could be possible, at the moment the ratio homes:walmarts seized, or threatened to be siezed, thru eminent domain is infinite what with the right half being equal to zero.
posted by Mitheral at 6:37 PM on June 24, 2005

Walmart looks to be on a pretty good slide these last six months. So is Home Depot. A 5 day trend is pretty meaningless.

i don't want to get distracted with this economic argument, but it's still telling that the markets didn't respond at all to this decision even though friggin' CNN was writing articles about how it was potentially great for big-box retail stores. markets respond quickly to microevents, even if it's not a big jump. (a good example: go look at the currency markets or nuclear/oil stocks at the exact moment on nov 2 when the race noticeably shifted from Kerry's good exit polls to Bush winning Ohio and Florida.)

look, it's obvious that the market responded to oil prices yesterday; why not respond to a decision that clearly has a marked effect on billions of dollars in both current and future investments in a few very specific industries. calling it a "blip" is laughable.

In the mean time I sure won't be holding my breath waiting for a Wal-Mart or Home Depot to be converted into an office complex or city park thru eminent domain. Granting it could be possible

precisely my point. prior to Kelo, it's not possible. (one-way street.) post-Kelo, it's at least an outside-possibility given a few good strong pushes in local elections. (two-way street.) no one's gonna argue that Wal-Mart's easy to mess with, but the decision at least opens the door.
posted by spiderwire at 6:55 PM on June 24, 2005

here's a more lucid way of putting all this:

what the libertarian Institute for Justice wanted the court to rule is that economic interest isn't a legitimate public good, because of the potential for abuse. (they cherry-picked this case because New London's actions were questionable but still within their legislative powers. keep in mind that they chose this case to pluck at liberal and conservative heartstrings. that's very important.)

the court said that's stupid, of course it's a public good, (you've heard of railroads, right?) they said that if there's abuse you need to challenge that specifically, and that's a legitimate point for the courts to step in. even if it can be abused, it's still a legitimate legislative power (most of which can be abused), and the court's role is to check those specific abuses, not to be a nanny for the legislature. that makes this a separation-of-powers issue.

the court acknowledged that the potential for abuse was problematic but wasn't going to say that just because of a potential harm, it was going to set a national baseline preventing it. that's an entirely appropriate interpretation of judicial power. the courts are made to check and correct abuses, not pre-empt them. that's the role of the legislature.

also keep in mind that if Kelo went the other way, there are a lot of other potential negative results, of which the Institute for Reason was more than aware. a few notable examples are important economic developments (affordable housing, mixed-use zones, etc) in low-income neighborhoods, reclaiming abandoned factories that are being held out to become high-rise condos post-gentrification, and all sorts of other pieces of private property (owned by both businesses and individuals) that prosper at the expense of their neighbors. soap rendering plants, nightclubs, stripclubs -- the list goes on. the one guy on the block who refuses to sell his house for the absolutely necessary new development project, condemning all his neighbors to the slow death of gentrification. the examples cut both ways, my friends.

there are all kinds of ways that scumlords abuse private property rights to screw over their communities, a decision the other way would have enshrined that ability and taken away the only tool communities have to stop stuff like that. that's what the IR wanted. don't let the libertarian nutsos convince you that the only commons that need to be protected are hospitals and roads. there are plenty of other ways to poison the very important commons that is a local community besides that.
posted by spiderwire at 7:11 PM on June 24, 2005

spiderwire writes "reclaiming abandoned factories that are being held out to become high-rise condos post-gentrification, and all sorts of other pieces of private property (owned by both businesses and individuals) that prosper at the expense of their neighbors. soap rendering plants, nightclubs, stripclubs -- the list goes on. the one guy on the block who refuses to sell his house for the absolutely necessary new development project, condemning all his neighbors to the slow death of gentrification."

I think we'll just have to agree to disagree. I don't see any of these as such negatives that the state should be empowed to transfer the land from one private party to another. How is stripping an owner of an old factory to turn it into condos because the present owner is not "making good use of it" any different than seizing my classic car and giving it to someone without a car just because I only drive it in parades and stuff. From what I've seen of stadium deals the taking is rarely a run away win for the municipality but boy the mayor's/alderman's/planning commisioner's friends sure make out good.
posted by Mitheral at 7:51 PM on June 24, 2005

Without eminent domain, in particular, we would have no federal transportation infrastructure like highways or railroads.
And this New London waterfront office/hotel complex is like railroads and highways how? A football stadium is like railroads and highways how? The new NYTimes building is like railroads and highways how?
posted by amberglow at 8:08 PM on June 24, 2005

This decision will come back to bite the left squarely in the tuckus. They have made it extremely difficult to oppose the impending push by the Bushies to pack the court with rigid rightwing party tools. Talk about "abortion", "gay rights", whatever your favorite agenda item is -- this one really dwarves them all. If a seedy developer can freely conspire with the city to steal your home for petty profit, our country is irrevocably changed in a very fundamental way. And we're so brainwashed and distracted by Bush's phoney war, that we don't even realize it's happening.
posted by RavinDave at 9:25 PM on June 24, 2005

How is stripping an owner of an old factory to turn it into condos because the present owner is not "making good use of it"

i'm sorry, i wasn't clear. there are a lot of landowners in inner cities and such who own big eyesore buildings like abandoned factories and the like that drive down property values and make the neighborhoods worse in general. these scumlords often refuse to sell or develop this land, because they figure when gentrification finally sets in (thanks, in part, to the low land values they're helping to drive), they can then sell those factories to make them into high-rise condos.

private property rights mean that you can't stop people like this from abusing the community and profiting off the community's misery -- Kelo means that the community can reclaim those factories for productive public use.
posted by spiderwire at 10:38 PM on June 24, 2005

amberglow: And this New London waterfront office/hotel complex is like railroads and highways how? A football stadium is like railroads and highways how? The new NYTimes building is like railroads and highways how?

not highways -- toll roads. in all the cases you cite, a legislature is seizing the land of one private interest and remanding it to another. the question that Kelo answers is not whether that specific situation is appropriate, but whether that power is appropriately delegated to the legislature. what the libertarians that brought the case were trying to get the court to declare is that a legislature could never seize private property and transfer it to another private entity, regardless of whether that's a stadium or a railroad.

don't confuse the right to legislate with the legitimacy of individual laws. make that distinction before we continue.

again, i'm not disagreeing that the New London instance itself is questionable. that's why the libertarian think groups chose it. it does pluck at the ol' heartstrings. but as is often the case with SC cases, you have to look beyond the specifics of the case to the issue they were trying to actually address.

what the court said was that this was a properly delegated legislative power and that it wasn't within the judicial branch's purview to set an artificial baseline limiting the power of the legislature to set those bounds. (incidentally, this logic also holds in, e.g. Roe v. Wade.) it's not up to the judiciary to decide that all local legislatures are open to abuse and need to have their hands held, even if that's the case. that's part of the fundamental faith in democracy that both you and i as liberals hold.

again, if you read Kennedy's concurring opinion, he specifically delineates that the reponsibility of the court is to check legislative overreach, but not to preemptively prevent the legislature from overreaching. and don't forget that he actually made some arguments about how that should happen that will be helpful to communities in future cases. now, there's a number of arguments you can make about whether the court should be affirmatively or negatively limiting that power. i'll grant that. (you can read a really excellent analysis here) but the part of the decision you're taking issue with really isn't in question.

what the Institute for Reason wants has nothing to do with individuals owning homes. what they want is for private businesses to be able to abuse their communities and to remove the community's only recourse to stop those abuses. (as in my previous example, if a landlord wants to hold on to an abandoned factory while waiting for gentrification set in so he can convert it to condos, there's only so much eminent domain you can invoke to stop stuff like that.) if Kelo went the other way, you'd never be able to kick out businesses that harm the community b/c they'd just invoke their private property rights. this cuts both ways.

don't confuse the power to legislate with how that power is used. or think about it this way: the Court doesn't delineate what Congress is or isn't allowed to do, specifically. what they do is strike down unconstitutional or illegal laws when they do come up.
posted by spiderwire at 10:54 PM on June 24, 2005

But, spider, isn't that assuming that there are no such things as backroom deals or DeLay-ish politicians or corrupt deals entirely? And why didn't they delineate exactly what the public good is? Isn't that vital to the whole decision? The speech i linked to above states that the courts here in NY always side with the corporate/moneyied interests backed by the city who want to take property. (In fact, it was only last year that they reformed our eminent domain state law to require real, acknowledged notification first--before that it was only a tiny legal notice in the back of a newspaper that was the only notification to the people losing their property that was required--you didn't even have to tell the other people that you were planning on seizing their property.)

Basically, aren't the rights of the existing property owners entirely being violated, and now it's even easier?

*envisions Trump City for 2020, where Queens used to be*
posted by amberglow at 8:37 AM on June 25, 2005

But, spider, isn't that assuming that there are no such things as backroom deals or DeLay-ish politicians or corrupt deals entirely?

yes. that is precisely the assumption that they made. when determining the powers that the legislature is to have, the court must make the assumption that the legislature is working as intended.

if the legislature isn't working as intended, that's a separate case. that wasn't the complaint that was being brought in Kelo. (although the case was selected by the libertarian groups since it's somewhat borderline and thus provides good -- if irrelevant -- rhetorical fodder.) that's why O'Connor's dissent is all about the "potential" for abuse, and not specific abuses themselves. the majority opinion emphasizes criteria for bringing such cases of abuse, and Kennedy's opinion is authoritative and restrictive in that regard. in addition, it enumerates certain checks similar to the notification check you just mentioned.

i'm not sure how else to explain this, but the judiciary isn't supposed to set positive baselines for the legislature in most cases. the legislature is supposed to delineate its own powers and make its own decisions, which can be post ex facto limited by the courts. the court said that they weren't qualified to state affirmatively what the public good is, merely to strike down instances of what it's not.

i'm not a lawyer, yet, so perhaps i'm not giving the most cogent explanation. here's an excerpt from that post i linked (incidentally, he agrees with you) that outlines it better:

"To me, the best way to understand Kelo is as an allocation-of-institutional-power case. In other words, the question is less about the definition of “public use,” and more about which branch of government gets to be the final arbiter of that question – courts or legislatures/city councils/etc. The best argument in favor of Kelo is simply that this is an issue for elected officials. They know the city or locality in question. They are accountable to voters. They are in the best position – institutionally speaking – to gather evidence about what will or won’t help the public. The other side of this is that courts aren’t that well-equipped to become city zoning boards. Not to mention that it’s almost impossible to come up with a coherent way to distinguish public from non-public uses...

There’s no reason that courts have to be the final guardians of all constitutional questions. I’m an old-school turn-of-the-century progressive in that respect - I’m skeptical of judicial power.

...The Kelo majority is, like the Raich majority, simply ruling that this constitutional provision must be enforced by other branches of government. "
posted by spiderwire at 9:34 AM on June 25, 2005

It's not the judiciary setting baselines for legislatures, but for other (lower) courts, which is one of their explicit jobs. I get what you're saying, but there is real tangible loss of rights here.
I can't imagine that any state legislatures will now pass laws stating that you can't use eminent domain for private property uses--can you? Especially when a local govt. wants it. It would mean no more convention centers, stadiums, office developments, hospital expansions, ... (in terms of privately owned institutions)

And in terms of publicly owned--schools--many inner-city schools all over the country are terribly overcrowded--can't cities now take the adjacent land to expand? (that would really be a public good, but is still wrong because it takes away the rights of others)
posted by amberglow at 9:49 AM on June 25, 2005

very interesting post on this at Crooked Timber (and google if you don't recognize the quote)
posted by amberglow at 11:37 AM on June 25, 2005

heh. "You must, therefore, confess that by “individual” you mean no other person than the bourgeois, than the middle-class owner of property," kind of gives it away....

the cry of "socialism!" is telling. one of my most hardcore and least-informed libertarian friends continually says that all taxes are "socialism," and lumps along with taxes welfare, health care, etc etc. think about this angle: all these arguments that you can make about the government "stealing" private property, you can also make about taxes. libertarians do this all the time. the government takes my taxes and gives it to the poor/Halliburton/whatever. but they don't really care if the government spent that money well or threw it away. they just don't think that the government should be able to tax, period.

me, i disagree. i don't want my money going to handouts, but i support welfare. i don't want my money going to Halliburton, but i recognize that the government sometimes needs the power to pull in private contractors. my problem isn't with the fact that the government can tax me, it's with the fact that the government often spends my tax money poorly. that's a perfectly legitimate liberal position. i take issue with the actions taken under the edict of that legislative power, not the power itself.

the libertarian position would be to destroy the tax system so that the government can't do anything. a better analogy to this case would be liberarian legislation that prevents the government from giving your tax money to any private concern whatsoever. now, you can come up with a lot of good arguments for this (lobbies, farm subsidies, Halliburton). but to give up on the idea that the government really can distribute resources to achieve goals that couldn't otherwise be achieved (money for small businesses; universal health care; affordable housing -- the list goes on) would be a betrayal of liberal values in the very deepest sense of the term.

amber, in response to the two specific things you brought up, (1) it's my understanding that the legislature would still have to affirmatively delegate the right to taking for private purposes, not negatively prohibit it. or at least, Kelo doesn't relieve them of the burden of proof. (2) prior to Kelo, the state could still invoke eminent domain to build schools.
posted by spiderwire at 2:34 PM on June 25, 2005

Those details came to the fore today during an interview on The Alex Jones Show, nationally syndicated on the Genesis Communications Radio Network, on which Michael Cristofaro, one of the New London Connecticut homeowners fighting the unconstitutional decision, appeared as a guest.
Cristofaro's family have lived in New London for forty two years and the city had already previously seized his first home by imminent domain in 1971.
Cristofaro related a series of actions by local government officials and their hired New London Development Corporation thugs that amount to nothing less than outright intimidation, harassment and extortion. ... (long list follows)

spider, i am not a libertarian, but out of all the good governments can do, seizing people's property for private development stinks, unless it's explicitly for a real public good (which is rare, since every govt. owns lands anyway and/or can afford to legitimately buy people out). I wouldn't compare it to any of your examples because it's clearly above and beyond those--there is no public good in an office project or luxury hotel. There is no public good in a NYT building that forces other businesses out of Manhattan without those owners getting full value of their property. The public will not get to enter or use any of those buildings, including the ones in New London. Razing neighborhoods is not a good use of government power--ever--that's why you won't see a Robert Moses here again (and he had more reason to grab, even tho they were bad reasons--roads actually are used by the public). The proof is in actions already taken, and will be seen very shortly. When it comes to money/power/connections against not-as-much money, guess who always wins?
posted by amberglow at 10:36 PM on June 25, 2005

amberglow: there is no public good in an office project or luxury hotel

that's just not true. both office projects and hotels provide a lot of customers for local businesses without necessarily bringing in new residents that drive house prices up. there are a whole bunch of sites in east austin, where i live, that would benefit enormously from an office park rather than, the steel mills, abandoned factories, and warehouses there now, which are also magnets for crime. just because something's not publicly owned doesn't mean that it can't objectively be called a "public good." if you look at urban planning all over the nation, you'll find that there are a whole host of projects that could really help communities post-Kelo.

razing a block of houses might not "ever" be good for the people there (although i'd dispute that), but it's unquestionably sometimes good for the blocks surrounding that one, and in certain cases can be a real lifesaver.

now, getting back to the top of your post, i think i intimated pretty clearly before that there were certainly a number of problems with what was going on in New London. remember, i said that that was why libertarian advocacy groups chose it. they want to demagogue about the specific case to distract from the actual issue at hand. the SC wasn't hearing the case on the specific extent of those abuses, the case was about constitutional limits on judicial and legislative power. this sort of decision is commonly the case when the SC hears something like of this nature.

again, i think that you're not looking at this issue from the right angle. look back again to the example of taxes. you can make you "money/power/connections" case about the tax system as well. but the fact of the matter is that, as liberals, if the tax system has the potential to be abused, we don't throw the whole thing out. we reform it and concentrate on the elected representatives who are setting those standards. same thing with welfare, same thing with health care. Kelo doesn't affirmatively allow the types of takings you're afraid of, it merely opens the possibility of that kind of legislation. we can still prevent it if we like.

not once have i disputed with you that there is a potential for abuse -- even a large one -- at the community level. but Kelo didn't change that. that existed before. and a ruling the other way would have been far worse in terms of the precedent it would have set w/r/t the judiciary interfering in the right of communities to act in their own best interests. again, my point is merely that just because there's a potential for abuse isn't a reason for the court to create an across-the-board baseline. they explicitly enumerated the necessity of hearing cases on specific abuses, but there is literally no across-the-board standard they they could have set which would have distinguished between "good" projects like affordable housing and "bad" projects like Wal-Marts. the only option at that point is to throw out the baby with the bathwater. instead, the Court explained what those limits should be, hypothetically, and deferred to the legislature until there's a specific abuse. that's a good thing, and it's how the system is designed to work.
posted by spiderwire at 7:00 PM on June 26, 2005

...just because something's not publicly owned doesn't mean that it can't objectively be called a "public good."

I don't think I'm prepared to buy into that idea.

Please provide an example. And, no, office buildings are not for the "public good": they are neither freely open to the public, nor do they benefit the public-at-large except in the most tenuous of ways.
posted by five fresh fish at 9:45 PM on June 26, 2005

way to engage in the discussion with this 4-line post, FFF.

And, no, office buildings are not for the "public good"

first of all, that's just obtuse. an office building in a lower-middle class area of town can provide enormous benefits. it brings with it a number of service jobs (cleaning, for example), and in addition those jobs are in the neighborhood. in austin that can literally mean as many as 2 hours a day in commute time that can otherwise be spent with a family. i'm sure you understand how significant that is. second, you shouldn't underestimate the important of an office building in terms of the retail customers that it provides.

i'm not speaking out of my ass here. i rent an office in a renovated warehouse in east austin that was rezoned and is now filled with small tech and design companies. the coffeeshop on the corner thrives because people working in my building, as do a number of other local businesses. it's only a few buildings, but it employs maybe a dozen people as cleaning staff, and more as maintenance, all from the neighborhood. it's tastefully designed and blends in with its surroundings. the building could not exist without the city of austin's willingness to rezone the warehouse and let it be converted into office space. the owner is also an east austin native and local, iirc.

point being, your anti-business paranoia is not unfounded, but nor does that make your argument correct. "public good" doesn't just mean "open to the public," either. i'm not sure where you got that standard from, but it hasn't been operative for a real long time. as for "benefits the public-at-large," you may not like my argument, but you can't help but admit that it is in some cases true, and as long as it is in some cases true, that keeps it squarely in the purview of the legislature, not the courts.

now, if you still didn't buy that example, i'll provide a few more off the top of my head, fwiw:
1. AFFORDABLE HOUSING PROJECTS.
2. RAILROADS.
3. private toll roads. would be a boon for austin, e.g.
4. mixed-used retail. or just locally-owned retail in general.
5. a whole host of regular businesses that could replace the aforementioned abandoned factories, etc.
6. power plants. wind plants need to be placed in very specific locations, for example.
7. various public-service type businesses that could be outsourced to private concerns. e.g. recycling centers.

also keep in mind that in many of these cases, it's not a choice between "people's houses getting bulldozed for an office park" and "people living out their happy undisturbed lives." anywhere where an office park can be built, the choice is more likely between "a few houses getting bulldozed in an attempt to revitalize the area" and "gentrification pushing everyone out and screwing them over piecemeal."

and, if you're going to fall back on amberglow's argument that "oh noes teh local governmnets are coruptz!!!1!!" then i'll remind you preemptively that i'm not denying that. i'm merely pointing out that (1) this case was about the SC not stepping into a legislative matter, and that they're not supposed to assume that all local governments are corrupt and (2) in the event that the local government *isn't* horrible (as in austin -- which is in texas, mind you), local planning boards often need the latitude granted by Kelo not just to use against homeowners, but against private business owners, and scumlords.

but the Institute for Reason don't want you to think about that -- they think that scumlords should be able to do whatever they want in their little Randian utopia, and they trot out the poor poor private homeowner getting screwed over by big gummint in order to make everyone get all up in arms about private property. didn't you people learn anything from the Reagan years?
posted by spiderwire at 11:26 PM on June 26, 2005 [1 favorite]

But all those things you use as examples do not require taking private property for them to exist--at all. There's no need for eminent domain when the government can simply buy property from owners if they want to sell, or can use existing land they own anyway.

I also don't think tax revenues count as a "public good." The revenues derived from many if not most of these projects also are offset or eliminated in the deals made, as in the Stock Exchange deal above. Every big project lately includes tax breaks too.
posted by amberglow at 1:21 PM on June 27, 2005

I'm still not buying into the "office buildings for the public good" schtick. You have largely succeeded in convincing me that this ruling isn't the end of the world and is the right decision. But this specific bit about private interests are in the public good just doesn't wash.

But, mind you, I'm a Canuck: most of our "for the public good" actually is for the public, and for the good.

Where I will agree is that a tightly regulated private monopoly can be in the public good. I have excellent examples here in BC: our main electric company is BC Hydro. They were given use of extremely large tracts of public land (valleys) for their dams, and the security of having a near-monopoly. In return, they don't get to fart without permission and BC citizens have some of the lowest electric rates in the world. It's a win-win for both groups: the private company and the public citizenry.

I can not think of a comparable situation involving office buildings or strip malls.
posted by five fresh fish at 2:28 PM on June 27, 2005

IOW, I suppose, what makes something "for the public good" are highly restrictive covenants on what can be done.

Public parks are generally not open to development.

Public forests can be open to logging, but the rules require environmental impact studies, public road construction, nearly unlimited requirements on everything from drainage to replanting, and the possibility of losing leasehold rights despite that investment in development. Plus, at the end, it remains public land, without limitation on who can walk on it.

Public healthcare is open to anyone who walks off the street. There are no, or very low, costs to the consumer. There are rules about priority care, myriad standards on cleanliness, thoroughness, availability, support, etcetera. It's regulated and very efficient, resulting in costs that are far below those in the private market of the USA.

And so on and so forth.

Office buildings aren't open to the public. They aren't tightly regulated. There is no cost savings to the public. It isn't run to provide the best advantage to the public at large. Ditto for stripmalls.
posted by five fresh fish at 2:38 PM on June 27, 2005

Columbia Univ. may use it now that this decision happened--They have tons of money, own large amounts of real estate in Manhattan, yet will grab because some holdouts don't want to leave.--...But the decision marks a definite setback for a group of Manhattanville business owners who are seeking to prevent the state from taking their property and turning it over to Columbia.
If forced to go to court to contest condemnation, they had planned to argue that the economic benefits of the expansion are not reason enough for eminent domain use, and to challenge Columbia to prove that promised benefits will materialize. The rejection of both of these arguments by the high court undermines their position.
The ruling does not, however, mean that eminent domain use in Manhattanville is a foregone conclusion. In New London, developers were not required to prove that the properties they sought to acquire were in poor condition. In Manhattanville, by contrast, ESDC would have to conduct a formal blight study and declare the area blighted before condemnation could go forward.
posted by amberglow at 3:18 PM on June 27, 2005

Spiderwire, please visit this thread and present your argument to Dios. He is capably arguing counter to your argument, if I read it correctly. I am very interested to see if you two can come to a mutually-acceptable interpretation of this ruling. Thanks.
posted by five fresh fish at 6:38 PM on June 27, 2005

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