Thursday, June 23, 2005

Kelo v. New London

Two thoughts about today's Supreme Court decision in Kelo v. New London, which allowed a Connecticut city to seize private property for a development plan wherein the private property would be used by other private citizens, even though the Takings Clause specifies that property can be taken only for a "public use."

1. Justice Thomas's opening paragraph in his dissent is particularly stinging:
Long ago, William Blackstone wrote that “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “'[P]ublic [P]urpose’” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”


2. Watch carefully to see whether groups such as People for the American Way correctly portray this decision as one in which conservatives favored civil rights while liberals were effectively opposed. The Takings Clause protects a "civil right" as much as anything else in the Constitution. And it should particularly protect the "civil right" to keep your family home when someone else wants to give it to the Pfizer Corporation.

4 Comments:

Blogger ScurvyOaks said...

The Court's jurisprudence is now that you have a constitutional right to do anything you want in your bedroom, other than rest in the confidence that you will continue to own it.

5:12 PM  
Anonymous Anonymous said...

I wouldn't hold my breath for conservatives to get any publicity for this. The AP story I read earlier today breathlessly detailed Sandra Day O'Connor's "scathing" dissent, then moved on to note the "liberal blocks" position, but failed to make even one mention of any other justice.

MichaelH

8:09 PM  
Anonymous Me too said...

Like the bedroom and every where else comment of scurvyoaks.

Now that "we" admit that the State can take anything that it wants {in other words: a return to the old world where the King and Lords could do what they wanted to do}, the battle should be over the compensation for the taking. When the taking was for a fort or jail, there was not much "market value" for the proposed use; but now when the taking is for a mall or high class residential use, there should be considerable FUTURE "market value" to be included in the fair market value compensation awared to the takee. The wealth should not just go to the developer and paid off politicians/tax base. Also, there should be some way around the fact that the plan to take an area frequently freezes any maintenance and inprovements, helping to make it appear to be a blighted area.

The new rallying call: You may take the property, but you are going to have to pay.

11:41 AM  
Anonymous Anonymous said...

Actually you're wrong about Pfizer. The lands to be condemned were not going to be given to Pfizer. The Pfizer plant was already built. It's the waterfront redevelopment plan, which included hotels and offices, that was in jeopardy because of holdouts.

1:29 PM  

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