Revenge and the Supreme Court

Actually 1896. If you've read the decision you'll know to which case I'm referring.

Do you mean whether I believe in property rights? If so, then yes. But my point is that this publicity stunt does nothing to uphold the principle of property rights or drive home any larger point about property rights or gives Justice Souter something to mull over....putting aside the insult that the least non-knee-jerk decision maker of all the Justices needs to "think about his decision."

To me, all it shows is that this group does not understand the decision very well. It is overly simplistic to say that the Kelo decision stands for the proposition that the government can take anyone's property as long as someone else has a better use or purpose for it. There were many more factors than that involved...and obviously so in light of the fact that this plan was approved at every legislative and judicial level that reviewed it.

Furthermore, I find it odd that this group feels the need to single out Justice Souter for additional reasons other than the one I mentioned above. Is it because Souter was a Republican appointee? Well so was Kennedy....and he wrote a separate concurring opinion explaining why he thought the taking was constitutional. Or, why not Stevens...since he wrote the majority opinion. Or why not the members of the Connecticut Supreme Court. Or why not the members of the legislature that voted for the plan. Oh, wait.....here's a novel idea.....instead of trying to take the legislators' homes....which could prove legally expensive....why not.....wait for it........vote them out of office for this outrage.

 

Don't get me wrong.....the result of this decision sucks for Ms. Kelo. I think Justice Stevens' opinion even makes the same point (albeit not nearly as bluntly as I just did). It's just that I don't think it was incorrectly decided based on my understanding (and, of course, opinions) of takings law. It comes close to crossing the "constitutional" line but doesn't quite, IMHO.

 

Just curious....and I'm not trying to be a smart-alec by asking this....but, how much have you studied takings law? From one of your sig lines you appear to be a recent college graduate. Are you in law school or did you take a con law class in undergrad?

Also, if you're looking for "original intent of the Framers" as your guide to constitutional interpretation.....well...let's just say I don't think you're going to find it helpful.

 

I have no problem with "strict constructionism" per se. Obviously, the text should always be the starting point for any constitutional interpretation. I just wasn't sure that you understood that there is a big difference between strict constructionism and original intent. Few scholars practice the latter. Really only Justice Thomas consistently practices it on the Supreme Court....which is why, IMO, he is so often dissenting on his own. It's just my opinion of course, but originalism has very little use as a mode of interpretation some 200 years after the document was drafted. That does not mean it is never helpful......but I just don't think it should ever be the default since it's difficult enough to figure out what the Framers thought of something in 1787....nearly impossible to figure out how they would apply those interpretations to modern issues.

 

I hope you're not throwing in this caveat based on my earlier question to Cyphapsu. I do not think lack of a law degree should preclude anyone from discussing this subject. I asked that question because cypha had some fairly strong convictions regarding constitutional interpretation so I was curious as to whether those convictions were developed by a study of con law generally or takings in particular.

Is it your understanding that the Kelo decision is the first case to fall into this category? If so, that's not correct. Certainly the majority of takings cases involve the government buying private property in order to build a road, etc. There are also regulatory takings cases where the government doesn't actually take the property but so severely restricts its use that the Court equates it to a taking. Finally, there is a fairly long (albeit not well developed) case history of the government taking property and then allowing it to be used by private entities. It was in these types of cases that the Court started to interpret "public use" in the 5th Amendment to mean also "public purpose." Most agree that the first of these cases was Fallbrook Irrigation District v. Bradley in 1896. This interpretation continued with other cases included Berman and Midkiff...both of which were cited in Kelo.

My point is that this case was not the first decision to allow a government taking to be turned to a more private use. That being said....I'm not assuming that the fact there is a history to this type of thing will (or should) allay your concerns.

Perhaps I'm being presumptuous....but I don't believe the majority necessarily thought this would be a boon to any side. The majority believed they were adhering to precedent as to what constitutes "public purpose."

Sure, there is potential for abuse....I would never say othewise. Also, I have never said this decision was necessarily a "good thing" as you state. My argument this whole time has been that I think the decision was correct and was not a stretch based on precedent as far as takings law is concerned.

As for safeguards, I would say the main one is how cumbersome the whole process is that had to occurr before Ms. Kelo's house was taken which is also why I said that the decision does not mean that every property owner is now at the mercy of those who can bribe county supervisors.

First of all, while Ms. Kelo's house was not considered dilapidated....the whole area had been classified by the state as economically distressed. Then a development plan, that has some public purpose, had to be proposed and passed into law. Then the plan had to get past court challenges. Then you have to be given fair market value for your property and the developer/government has to prevail in convincing a board or other courts that they have given you fair market value, etc., etc. Yes, ultimately your property could be taken but the process is much more difficult than it appears.

The Court even somewhat addressed your concern when Stevens stated:

"It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual excercise of government power would certainly raise a suspicion that a private purpose was afoot, (the point being purely private purposes are contrary to the 5th Amend....my comment...not the court's) the hypothetical cases posited by petitioners can be confronted if and when they arise."

So, yes, abuses could occur but not easily. I think inherent in Stevens' opinion is the fact that while not a slum...this area wasn't in good shape and the plan was meant to address that. That may not make you feel any better but it's my take on the whole thing....for whatever that's worth.