This issue is NOT over, or rather, it should not be over.

The site of a consensus on suggests to me that a solution to this situation is obtainable.

The real final word on any issues does not rest with the Supreme Court, it rests with the Constitution. To resolve this injustice we need a constitutional Amendment.

When we had a ED case come up in my area, I and others wrote to the Missouri State house demanding that the state address the issue to ensure that people are fairly compensated when ED is necessary for such things as highways, Hospitals, etc. We also demanded that the state house address the issue by not allowing municipalities to use ED to take property from one private owner to give it to another.

At a minimum I believe that fair market value should be addressed. The solution I proposed here in an earlier post, as well as in my letter to my state house is one way to ensure that people are justly compensated for their property (or at least the compensation would come alot closer to being just).

I proposed that before property could be taken, it must be appraised. Three appraisals must be done. One by an appraiser chosen by the property owner, one by an appraiser chosen by the municipality and one by an appraiser randomly choose from the list of licenced appraisers in the state. Once all three are in, they should be averaged. Then that amount should be multiplied by 1.25 and the result should be the minimum that private owner should be compensated for the loss of their property.

This would not eliminate the use of ED, but it would at least ensure that owners are better compensated for their homes.

The second proposal was that a hearing by a "jury" of local residents should be held for all ED cases. The "jury" would be empowered to approve or disapprove the use of ED based on the case made by the parties involved. The Municipality would have to prove to a "jury" of local residents that the use of ED in each case was actually for the public good.

Again, this would not completely eliminate the use of this practice, but it would restrict it through a stronger system of oversight.

Now, with the Supreme Court ruling on this it is time for a campaign on congress.

We need to push Congress hard for a Constitutional Amendment to address this issue and protect the most sacred right of all Americans, that being the right to be secure in you ownership of property.

We can complain, and be shocked all we want. But if anything is to be done, we need to work hard for it. My Senators and Representative as well as the White House have all heard from me on this issue via the web, telephone, email and hand written letters. And they will continue to hear from me on this issue until they address it or charge me with Harassment. What steps have you taken to address this injustice? Simply complaining about it is NOT enough.

Overlandsailor -

Can you explain a little further why you think a Constitutional Amendment will solve the problem of the Court, above other possibilities of recourse such as a Constitutional Convention, judicial restraint, or judicial impeachment?

The majority opinions of the Court case Kelo v City of London included *zero* references to the Founding Fathers' original intent of the phrase "public use". It appears as though they did not even address the issue of historical context at all, and I argue that if they had thought about such a thing that the ruling would have had a different outcome.

Instead, this ruling is a first to establish "increased tax revenues" as a definition of public use. And the very thought of "positive community results" as a definition of public use is based only on Court precedence, not on Constitutional text. The best way I can describe why an opinion based solely on precedence and nothing on original text is incredulous, is a little example: Suppose you take a text that was originally written in Greek and you translate it to English, you can't help but lose a little of the original intent, even though the translation is not utterly lost. Now suppose you want to get those words into Spanish. If you take the English words and translate them into Spanish, the possibility of losing the original intent is much, much greater than taking the original Greek and translating it into Spanish. In the same manner, these justices used translations of translations of the original Constitution without any reference to the original intent of the Constitution and thus created a weak precedence that ignores the original intent.

So, to me, the issue isn't so much that we don't already have the protection in the Constitution. It's that the judges used attitudinal predispositions to override the Constitution. In other words, I think this is more of an issue of getting the Supreme Court justices to do their original job, instead of an absence of such a right in the Constitution.

Cruising Ram-- I really don't appreciate it when you make such blanket statements with no proof whatsoever about Scalia. I suggest you read his book : A Matter of Interpretation. And then read a number of his opinions and you will see that he NEVER sways from his judicial philosophy. The medical marijuana case, as much as I was against it, had solid precedent behind it. That precedent had been built (and expanded) over the years by the Warren Court up through the early 1990s. That precedent clearly established that the feds have almost unlimited power to regulate under the commerce clause. A key component of Scalia's judicial philosophy is to respect established precedent. That explains the medical marijuana decision. It should also give liberals comfort to know that he will never overturn a case like Roe v. Wade.

The 2000 election decision is also clearly explained if you read the opinion or any interviews with him after it. It was an extraordinary circumstance, and ultimately, it was more appropriate for the U.S. Supreme Court to pick the next president instead of the Florida Supreme Court.

In any case, you shouldn't go around making unfair accusations about Justice Scalia. Of course, if you would like to open up a thread on the topic and put forth evidence of these accusations that he is a corporate/Bush lap dog, I would be happy to explore the topic with you.

Hey, I will hold Scalia as a lap dog as long as you hold that non-conservative judges are "judicial activists" LOL- it is almost as good as saying "my music is music and yours is noise" - and then trying to come up with some proof of why it is such.

But back on subject- to me, it is easy to see why we need a constitutional amendment- because, like with the second, there is some ambigious language here, that needs to be addressed. A simple phrase "can never be used for private gain" would eliminate this issue in regards to ED and this particular decision.

Hopefully, there is a groundswell of support for changes at the state level to shut this kind of crap down.

That's sort of true. I believe what precipitated this whole fiasco is people losing their property for private business (i.e. Walmart) and crying foul. So, many projects have been on hold until this was resolved. I wouldn't be surprised if these people waiting aren't looking at a pile of dust where their homes used to be by now.

But in reviewing this thread, it makes me wonder - are these Supreme Court justices just too damn old to be able to make an objective decision? Maybe a question for another thread...I dunno...but a few decisions just don't appear to make any rational (let alone legal) sense.

I agree with you completely 4gold. The unchecked judicial philosophy of the "Living Constitution" is finally coming home to roost. We have permitted judges to expand further and further, this approach whereby the constitution simply means what they say it means, with no textual anchor, and we are seeing the results now. "Public use" means anything that increases tax revenue. "Interstate commerce" means a plant that you grow in your window sill.

We must hold our justices to judicial interpretation that respects the text of our Constitution.

As an aside-- some have suggested that the Justices are too old and this is the explanation for such a whacko decision. Keep in mind that 4 of the members of the majority are relatively young-- Ginsburg, Souter, Breyer and Kennedy. Most of the older justices were in the dissent: Scalia, Rehnquist and O'connor. It is not an issue of age, it is an issue of unchecked judicial power. We have permitted a state of affairs where the Court can say the sky is yellow and there is not a darn thing we can do about it.

Finally, I found an excellent commentary by George Will on this case:

http://www.townhall.com/columnists/georgew...w20050624.shtml

Since, for what must be the first time in history, we all agree on the issue, let me give an easier option than a Constitutional Amendment. Nothing prevents the states from giving stronger private property protections than the federal government. It is time to notify your state legislators and other officials that you want the state constitution to specify that state and local governments cannot use the power of eminent domain to transfer property from one private owner to another.

I guess I'll throw my hat into the dissent ring. I voted "Yes, In All Cases", even though the poll is poorly worded and doesn't actually explain what occurred with the Supreme Court decision. The court's decision was based on the judges (the liberal block) feeling that federal judicial appointees could and should not make the decisions concerning eminent domain. The 5-4 vote was to allow local governments to remain in control of the decisions (frankly, a very Republican conceit).

I agree with Hugo, that everyone should contact their local representatives, which is exactly what the 5-4 SC decision was intended to do. Here in Utah, our legislature has created laws to protect private property from the "eminent domain" clause. The court issued its ruling due to the fact that no judge should create law. For all the annoying rhetoric of judicial activism, this is exactly the opposite--judges ruling based on current established law.

Let me be perfectly honest: I think the seizure of private property is generally an abhorrent practice. However, and this almost seems to be an affront to my Democrat-leaning tendencies, I feel the decision of eminent domain should be held with the states, not with federal judiciaries. While I disagree with the city of New London's decision to remove the occupants from their privately-owned homes, I still feel the state's government should be held accountable. If the SC had ruled the opposite way, the decision would have removed power from local government to decide what is best for its own constituents.

I think the people being forced from their homes should be given not only fair compensation, but a lot more money, including a refund on all property taxes paid for the length of occupancy. I must wonder if New London will proceed with their plans, considering how controversial the ruling is. The local representatives may find voters removing them from office next election cycle if they don't do anything to stop the "eminent domain" takeover. But that's how it should be--local governments should be held accountable to the voters. This decision has merely affirmed that.

I said no in all cases, only because I agree with the FargoUT in that the poll is ill-worded. The question is whether it is for public use. The answer is yes. The court made the correct decision IMO, so there will be no unanimity within the members of the AD community. Also, I think I can possibly persuade some others to change their mind.

The court did not act outside the scope of the law in this instance. at all. They also acted well within precedent of this issue. You can not blame the court, because we've allowed the government such broad powers. If the court were to overturn this issue they would have to overturn other similar decisions as well.

HUGO


I think this would be pointless since this is already the case. This would not change the government from taking land from private citizens, keeping the land, then leasing the land to developers, now will it?? As long as it is for "public use" or "public purpose" It has already been established that the Government does not have to keep the land they seize. Even Scalia states this in the case transcripts:



It's already well established that once a property has been deemed necessary for public purpose the property can be seized under the precept of "eminent domain". Once it has been seized the government is not mandated to be the only one allowed to use it. They can lease or sell it to private entities. seeBERMAN v. PARKER, 348 U.S. 26 (1954)


*Emphasis mine*

DR


But can you honestly say this case has not rationally been decided through the law of the land.

Is it constitutional for the government to take land from private citizens for public use??

Yes.

Is it been established that, legally speaking, public use and public purpose are synonymous?

Yes.

Are higher tax revenue, increased commerce, and higher employment items that serve the public's end purposes?

Yes.

Is it established that a government can use private entities to establish the goals of the public purpose?

Yes.

Don't blame The Court, blame the law, blame the Constitution. Let's think about this. Every time the Court has ruled in against the private owner it has ruled in favor of the government.

The Court has ruled in favor of the majority will. Now, I will be the first to argue against the tyranny of the majority, especially when there is just some moralistic argument that the majority uses to bash a minority. This is not the case here.

But Droop, don't you see that the Court has eviscerated the adjective "public" that is written into the fifth amendment to qualify and limit the taking of private property by government? If public purpose only means that the use of the land will achieve all those things you say: higher tax revenue, increased commerce and higher employment--- then every taking of private land is for a "public use". It is the Court's job to read the correct meaning of "public use" into the Constitution. The reading they have produced has effectively eliminated any restrictions the term was meant to guarantee.




Why is a moral judment by the Majority any worse than a judgment that deprives an individual of a basic right to own his own property? How is the individual any less violated in this case? The "minority" in this case happens to be those persons who are not as well situated economically as those who can afford to spend lots of money developing the land. How can you say that this type of violation of an individual's right is not aggriegious?

Questions for Debate: Do you agree with the Court’s decision? Is using Eminent Domain for seizures of private property to the benefit of another private entity a violation of the Fifth Amendment?

I think eminent domain is a need thing in our society and will only become more so as our nation becomes older.

I also think that eminent domain is presently being abused as a more normal tool for development. Daffy Linky

Perhaps Overland's Constitutional Amendment is the right remedy. If I were to make an Amendment I would be wary of a ban on private business use because taken narrowly this could exclude privatized things like canals and railroads or airports. What I think must be done is to protect those having their property seized. What seems more fair to me is to make sure that the individuals being compensated are paid at least a certain percentage above a fair appraised value of the property, AND if the eminent domain move also means a zoning change from private to commercial, that should be reflected in the appraised value. 125%? 150%? You make the call!

What I think is also becoming evident is that city or local governments can not be considered neutral parties in these cases, but instead they have a direct vested interest in making the changes bases on increased tax revenues from new development. In this individuals find themselves in the unfortunate position of being an obstacle to their government's goals. The deciding factor more and more seems to be tax revenues over personal property rights.

The additional tool being used right now is blight. Towns and cities are determining that some areas are a blight to have people removed from their residents and businesses in order to bring in a larger retailer or a higher tax base property development.

blight and eminent domain


Okay, now the Fifth Amendment



I don't see a violation of the Constitution until the blight clauses are used to accomplish eminent domain transfers without just compensation. The due process of law seems to be being followed.

I am not upset with the part of this decision that makes it a states' rights issue. If one state wants to have a more liberal eminent domain that does not violate the fifth amendment then it is up to the residents of that state to fight it or accept it.

Hayleyanne

I agree, the Court has eviscerated the adjective "public", but not in this case. n this case the Courts merely followed precedent. The Courts were not prepared to revisit other cases, where they had already manipulated the term "public use" to "public purpose". I pointed out Scalia's remarks because I know how highly respected he is to conservatives. I reiterate his words



Why doesn't Justice Scalia demand that the State should have to use the property itself??

Because neither the conservative nor the liberal side want to take this type of power from the State. For different reasons of course. If this were some poor ghetto, where minorities are upheaved out of their homes and business's.... I take it back... even if it were some trailer park or some poor farmer's land, this case probably wouldn't make headlines. Plenty of people seem to be saying it is happening all over the place, so what has made this case so special? Maybe these people have just enough money to make an issue out of it.

I begin to regress.

My point is that it really isn't that far of a leap from "public use" to "public purpose" and even if you think it is neither the government, right, left, or center, nor the Courts, right, left, or center, seem to think it is. Again for different reasons I suppose. And once the seized land is in the possession of the Government, it seems as though the Government with the Courts agreement can turn it over to private entities, if it serves the government purpose.



The wording of the amendment has always allowed for broad interpretation. This, again, is not to say this court is eliminated any restrictions.

Let's view a discussion between the petitioners lawyer and Justice Breyer


So two points I want to make here. Both I emphasized above.
First, this judgement does not allow for any kind of seizure, rather those for public use or public purpose. The problem is is that is just so broad of a term that so many instances would meet the low standards. I.E. Increase tax revenue is a public purpose and a a use to the public. However, say there was a Democrat town, and Sean Hannity owned a big house there. The town could not seize his house just to allow michael Moore the ability to live in it.

My second point is

Notice that the petitioner's(home owner) lawyer concedes that the Berman case is within the limits of the governments eminent domain.

Funny thing is, Justice O'Connor, maybe she was trying to throw the guy a bone, asked him this:



I personally think that the attorney should have said "no" because lets look at the Berman Case



So we have here is an attorney for the homeowners, conceding that a previous case, where it is ruled that it is okay for the government to seize private property and resale it to other private interests, is within the legal limits of the government. Yet, at the same time he is arguing that it is wrong for the government to take property from one private entity and give it to another private entity. Does this not seem absurd??



I will try to explain this quickly, because I have already written a handful. Money in all it's forms is power. Power controls. I have no qualms about controlling people's ability to control others. Moral judgements are simply about controlling others, nothing else, in most cases.

Droop. This is an expansion. You've apparently read O'Connor's opinion, so what do you think of this part of her opinion?

Is it an expansion simply because the semantics are different?? I guess that all depends of your idea of expansion. I think that this case is different in some areas then previous cases. Saying that, all cases are likely different than ones they are compared to.

To me, Justice O'Connor is pointing out differences, but I believe those differences are irrelevant due to the fact it addresses a degree to which harm is visible before being allowed to seized property, she does not really show major differences on the legality of the government's ability to actually take land. Add to this, where in the Constitution does it say there must be harm to remedy? Where in the Constitution will these limits of harm be defined and at what point the government is allowed to seize property to remed?. There isn't any place where it does.

The petitioners (home owners) are saying that what the government is doing is giving up land from one private entity to another. Berman was brought up specifically because it shows the precedent of the Court handing a judgement in favor of the government stating that it could seize property for public use, "even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes"

Let's take a look at an exchange in the transcripts between the the attorney for the home owners and Justice Ginsburg



I want to hit you from two different angles on the above transcript.

First, let's have a look at the emboldened text you quoted from O'Connor's opinion.



Now, look what Ginsburg is stating in the above quote. "in Berman, there was a department store that was not blighted," In the Berman case, property that was not part of the problem was seized and condemned! Why?? Because the property was in the middle of a "blighted" area. So again, we have precedent to support this court's decision, precedent that none of the conservative Justices seem to be saying needs to be revisited.

Now the second angle I want to address is the idea of "blight" What is blight?? Does anyone doubt it is a code word for impoverished??

If the concern is that property should never be given from one private entity to another private entity, why doesn't she state so in her opinion. Why does Scalia state, "Mr. Horton, I'm not proposing that the state has to use the property itself. ." Why isn't he proposing that? The reason why is that is not the concern.

So to combat Berman what is being done is to say "Oh, that's different, that area was blighted."

Do you see what I see, now? Their argument boils down to: "It's different, if your poor." It will always comeback to the everlasting struggle of class warfare. Even if we don't see it at first.

I remember the surprise of many in this thread to find out the liberal judges were the ones to hand this one to the government. I understand why. As liberals we fight against the status quo, not for them. But you see it is all in the framing.

The framing of this, thus far, has been "liberal judges allow for the government to seize and hand over your property to other people for profit." And everyone knows this framing is going to stick in the liberal-masked conservative media.

But if we dig deeper, we can see the true framing of what really is going on. All the conservative Justices seem to be arguing is "blight", the conditions of a neighborhood or area, before the property is seized. The fact that property is seized and resold to other private entities does not matter to the conservative judges, else they would want to revisit Berman. What matters is the class of people owning the property.

So, now, let us frame the question like this. "Is it Constitutional to only allow a property to be seized if it is impoverished or located within an impoverished area" The answer to most liberals, I believe, will be "no"

Understand, Berman has already been established as the status quo. So it is established that the Courts allow for governments to take property from a private entity and lease/sale it to another private entity, if it serves public purpose.

If the courts in this case went he other way without mentioning a need to revisit Berman, what is the message it is sending?? The message would be this "Eminent Domain is a policy that the government can only use on the poor" And that is a pathetic message, and that is why I don't believe this judgement has expanded the powers of the government.

Instead, this case was about limiting the power of the government to only uproot the poor in our society. And my team won!!

Let's go LIBERALS!!!

O'Connor is not saying this case is a lesser degree of harm, she is saying that in this case there is no harm being done by Mrs Kelo and the other residents. A distinctive difference.


I agree. It doesn't say it anywhere in the Constitution. Therefore, Berman and Midkiff had no constitutional backing either, as Justice Thomas points out in his dissent. I used O'Connor's opinion because I didn't want to start a precedent vs document argument. Even if you accept the 2 precedents though and use them as your entire argument like Stevens did, there is still a large degree of difference as none of these homes are blighted in any way.


The purpose being to eliminate the harms to society caused by the blight in the area. Since Berman himself wasn't blighted, Justice Thomas and other constructionists would rule that the court was unconstitutional in taking his property and I would have to agree with them. O'Connor argues that to remove the blight, you had to take everything in the area to remove a harm to society. There is nothing in Kelo's entire neighborhood that is harming society in any way. A marked difference.


Blighted and impoverished/hazardous are one in the same true. Scalia isn't proposing that the State itself has to use the property because of a of second, generally accepted(with much more than 2 cases of precedent) use for eminent domain. That is for private creation of something for public use. You're local utility is likely a private company. The entire public uses their services though. Scalia doesn't disagree with the use of eminent domain in those cases. What is the public use of the office spaces planned by this corporation?



Why do you think that? Thomas is the one in his opinion that said the Berman ruling was bunk, not Stevens or Ginsberg.

Yes, she is stating this but how does her statement make it so?? Harm is too broad and too relative of a term. It would be in the eye of the beholder. The city was going through a depression, they felt they needed that property to avert greater depression. By not selling, the few homeowners may deny the community jobs, they may cause the city precious tax revenue... are you going to say no one can logically see this as harm?? I am not even going to go so far as to say I see it as harm, merely that such could be seen as harm. So, as I said, one's view of harm is going to be relative.



So why continue to mention harm?? It is irrelevant. I bring up Berman only to the extent it allows for the government to take property and hand it over to other private entities. I do not too much need the midkiff case to prove my point.

Again you mention blighted as a "large degree of difference" Explain to me the large degree of difference from taking the property of the impoverished and that of taking the property of someone who is reasonably outside of poverty.



Again a marked difference... yet, again, an irrelevant difference. I ask again, if nothing is said of "harm" within the Constitution why continue to bring it up?? So what blighted homes are viewed as harmful to the community. Standing in the way of bringing jobs and money to a community is harmful as well.

So,
Issue 1

Harm is too relative a term to just throw out there without clear quantification.

Issue 2

Harm is irrelevant, due to the fact it is not found in the Constitution

Let's say for the sake of arguing that Berman property was blighted, why does the government have the right to seize it, demolish it, rebuild it, then resale it to other private entities. This is what I believe should be focused on. The Constitution at no time makes mention of blight, therefore it is irrelevant. What the constitution does mention is public use. This takes me to my next point.



More to my point. I don't know how far back we have to go to see when public use turned to public purpose or what case is the first case that allowed seize land to be used be private entities. But it is in that case not this case that powers were expanded.

Once it was allowed for private entities to be the means by which public use/purpose could be realized, the flood gates opened up. If my electric company is private that means it works for profit, not for the public. As long as they are paid they service electricity, therefore how does it become public use?? Since I know people who have had their electricity cut off it would be wrong to say the entire uses the services. In fact, only the people that can afford electricity or are subsidized may use it's services. Which put its place of public use somewhere close to McDonalds.



But, why did he say it was bunk?? Was it because it was, in part, handed to a private entity. He also on many occasion affirms the reason given by O'Connors, as well.

To me the justices play a game. Stevens and Ginsburg would not likely mention the Berman case as lacking, because they used that precedent as a means to an end to justify this decision. If this decision did not go the way it did it sends the message "eminent domain is for poor people only" So why is Thomas against Berman and Midkiff. Is it because of the lack of blight?? Or is it because the involvement of private entities?? The reason I ask is,
Constitutionally, what does it matter what condition the property is in?? All that matter via the Constitution is that is it for public use and that there is just compensation

I think that we are on the same page here. Forget O’Connor’s fine slicing of precedent and Constitution to justify the past since harm is relative. We both seem to agree that the Berman and Midkiff rulings overstepped the 5th Amendment. As I said earlier, I used O’Connor’s opinion in the hopes of avoiding a separate debate on Berman and Midkiff. I assumed since you were backing the majority, that you would be backing their main sources for their decision(Berman and Midkiff). We can still have it, but I think it pointless since we both seem to agree with the Thomas decision.





I think it’s clear that Thomas is attacking the Berman and Midkiff cases because of the bastardization of the Public Use clause. I agree that those cases are when the slippery slope began, and Thomas believes that they should be reconsidered.

Concerning your accusations that the conservatives on the court are saying it is OK to use eminent domain if you are poor. This ruling points to the opposite. The poorer you are, the worse this ruling is for you. This ruling allows anyone with more money to force you to sell your home if they may be able to create more tax revenue with it than you(easy enough to prove, since a bigger, more expensive home would be taxed higher). Stevens is validating the Berman case with his decision. O’Connor is not fighting Berman, but she isn’t fighting Midkiff either which was a use of eminent domain to force 72 rich Hawaiian land owners into selling. So your class preferences argument does not seem to apply to her. As for Thomas, it is plain that he just believes in public use, not public purpose, regardless of wealthy. This is the idea that protects the poor, along with everyone else. So I guess that I still don’t understand why you prefer the majority ruling on Kelo vs New London.

By validating the Berman decision, aren't they saying "Yes"? By allowing those with more money to force you to sell if they can create more tax revenue, aren't they saying "Yes"? I really do believe that we are on the same page with this case Droop. Am I missing something?

I agree... for the most part. I am so far in agreement with Thomas, but not necessarily in agreement with all his reasoning.



And here may be where we may have to split ways.... Yes Thomas is attacking the Public Use Clause, but to what degree?? I admit I can not fully grasp it. If property was seized so that a private electricity plant could be built... how would he rule??



Allow me to explain, Thomas was not the majority in dissent, even amongst the dissenters correct?? Even if he does see something wrong with Berman, he is the only one who mentions it to the extent that it needs to be revisited. He and the other judges sign on to O'Connors dissent, leaving him lonely in this aspect.

As I said before, the Berman case establishes the status quo. After the Berman case if you were deemed in a "blighted" area... you were fair game. This ruling couldn't make those in blighted area even more fair game.

If this case had went the other way, that would not have made Berman inapplicable, instead it would have signaled a "blight" test. It would set the precedent that Government can not take land.... unless blighted/impoverished/harmful.

If this case went the other way before Berman is revisited, you just put the cart before the horse.

The fact that O'Connor doesn't mention attack Midkiff, doesn't make my argument of class warfare unapplicable, because my argument deals with the differences she places between Berman and this current case. The factor of difference she makes is that class structure, by differentiating what is and what isn't "blight." Basically she is saying these house are off limits because they are not slums.

I hope this make clear why I prefer this ruling. If Berman is revisited and from there it is overturned, first, this case will ave no legs to stand on.



Order of importance. I am not validating Berman. I am validating this case with the precedent of Berman I reiterate, for this case to be ruled against the government along with Berman being ruled for the government says... "We take land in the slums, not in the 'burbs"

Maybe you aren't validating Berman, but Justice Stevens did with his ruling. Would you have voted with Stevens or Thomas if you were on the Supreme Court?


O’Connor clearly compares the Midkiff standard as well. I have to disagree that she is saying that houses are off limits because they are not slums. The Midkiff homes were not slums and she supports the use of eminent domain in that case. The standard for O’Connor is that those homes created a public harm. Her arguments supporting the Midkiff ruling:


(emphasis mine)

We are not seeing a “blight” test from O’Connor as you say. We are seeing an “affirmative harm on society” test. A marked difference.

So we are back to the relativity of harm here. Kelo v New London did not argue in any way that the Kelo homes were causing harm to society. New London did not argue for that, so the homes would not pass the “affirmative harm on society test” in this case. The question is why did Berman pass this test? Before I go into that, I would like to say that I do not support the Berman ruling. It should also be noted that the Berman ruling was made in November of 1954. I am going through this to point out that the Kelo vs New London ruling is a hazardous expansion on this ruling. I am also hoping to show that would the Supreme Court have sided with Kelo without overturning Berman, our property rights would still be relatively safe provided we weren’t monopolizing an entire island and kept our neighborhood healthy.


The spread of disease is a distinctive public harm. There are no potential diseases coming out of Mrs. Kelo’s neighborhood.

This is the kicker here. Berman was ruled against not because his dwelling in and of itself was a danger. The entire area needed a completely new road structure, street lights, and adequate alley sizes to remove the harm caused by the neighborhood. These public use items could not be achieved in piecemeal. So like any other road, eminent domain was used here. The purpose changed though to remove an affirmative harm on society.

I repeat, I am not justifying the Berman ruling. But even if you leave Berman in tact supporting Kelo like O’Connor did, you are still leaving a high threshold for the use of eminent domain. Siding with New London has blown the doors of eminent domain wide open since the “affirmative harm on society” test is now passed if someone else has a chance to create more tax revenue with your property. Which is worse Droop: to leave in place an "affirmative harm on society" test or to create a "could the government make money" test for the government use of eminent domain? Which hurts the little guy more?

Maybe he is validating or maybe he is simply saying what is. As I am doing. Berman has been the standard. It is precedent. One could say, I am validating by allowing it to be used in my argument to justify this current case, or one could see while I may not have the best hand I am playing the cards that have been dealt. Berman was the card in the deck that made sense to play. Not in the name of right and wrong, but in the name of fairness, or should I say my idea of fairness.

I would throw my hat in with Justice Stevens all things being equal.



In a sense I must concede and admit to a bit of hyperbole on my part. Other houses can be seized that are not impoverished. I do not believe Midkiff, parallels to the extent that Berman case does. Now, all three are vastly different in many ways, but what is the biggest difference between Berman[I]
and this case is what?? Harm?? Well harm is a broader term, but blight would be the more specific term.

QUOTE

We are not seeing a “blight” test from O’Connor as you say. We are seeing an “affirmative harm on society” test. A marked difference.

A marked difference... I disagree. The two test are not exclusive of each other. Though we both, I believe, find harm irrelevant via the constitution, let's examine it in the frame used by Justice O'Connor.

The broader test is harm. Under "an affirmative harm on society" test both [I]midkiff and berman would fall under this. But each would have their own reasons why they cause harm correct?? And these test would be separate and would depend on what is argued in seperate. Throw midkiff aside. O'Connor is clearly stating that in the Berman case there was societal harm, but what is the harm?? Blight. Thus it establishes a blight test inherently. Why because the arguement the homeowners are making is there is no home because there is no blight. Let's have a look at the transcripts.



and this...




And this...



Over and over we see there should be some distinction or line drawn at blight. Because blight and harm go hand and hand. Poverty and blight goes hand and hand. Thus to prove harm in terms of economic conditions of property, you will need a blight test. It is unavoidable.



Well let's see, both are wrong, but one is unfair and wrong. If harm on society can be construed as any blighted area, then who is going to determine what is blight?? And once blight is determined, any person that owns property in the area can be moved up and out. The little guy already will be exploited, this ruling simply states the mid-size and big size guys are fair game too.

Also add to that "harm " is only a relative recent development. All that has to be proven is that that there is some public use.

JLMA
I would like to get your opinion on this:

Let's say for the sake of arguing that Berman property was blighted, why does the government have the right to seize it, demolish it, rebuild it, then resale it to other private entities. This is the key to the berman case, not harm. Harm is simply a smoke screen to only, I mean for the most part, allow this behavior to be held only to the impoverished.

Just to be perfectly clear, you would have sided with Stevens instead of Thomas. You would have ruled that all property is fair game for eminent domain in the name of fairness. Amiable. Thomas' decision to overturn all 3 cases is also fair though. You can't use eminent domain on anyone without a public use. So Thomas is also being more true to the 5th amendment which you seem to be in favor of. Yet you still contend that Stevens has it right? You lose me here because I thought that you were against Berman(and by extension maybe Midkiff), and for the Public Use clause of the 5th Amendment.



The public harm was health dangers. This unclean atmosphere was caused by blight in the Berman case. You can still be poor without being unsanitary though can't you?



I think it is avoidable. Poverty does not necessarily lead to blight and public health issues such as 57.8% of the dwellings having outside toilets, 60.3% having no baths. Again I ask, can you not be poor and sanitary at the same time? PS - note the Justices you chose to use in your examples that were drawing the line at blight.


Which is exactly what Thomas' decision was trying to correct. Do not allow the little guy to be exploited. Stevens' decision is exploiting the little guy even further by opening the reasoning for taking the little guy's property to increased tax revenue, with the seemingly consilatory effect to you of also allowing richer entities to be exploited through this means as well. Agree?


The government does not have that right. We are in agreement again. The strict constructionist reading of the Constitution should be followed in all property rights cases. We both also seem to agree that at least 6 of the 9 Justices(I'm not sure if Scalia and Rehnquist are in agreement with Thomas or O'Connor) are wrongly in favor of keeping Berman and Midkiff as is. In terms of property rights, we therefore need a more conservative Supreme Court along the lines of Justice Thomas. I hope that you remember that if there is a retirement from the Bench.

Which is exactly why this decision is so, well, unconstitutional. Let me ask...where does this process stop, then, exactly? When the richest person in town owns everything? Following this logic, harm is being done to the community anytime anyone wants to put something that will generate more tax revenue than whatever is currently there. This ruling pretty much already says its ok to take that property and give it to the other party...no need for a slippery slope, we're already at the bottom, down in the mud and slime. If I merely want to put a bigger house on your property, I will generate more tax revenue, and therefore I should have the right to have your property condemned? Does anyone here really support this? Do you think any of the founders would support this?

Again you mention blighted as a "large degree of difference" Explain to me the large degree of difference from taking the property of the impoverished and that of taking the property of someone who is reasonably outside of poverty.



If any of the homes in Kelo's neighborhood could be replaced by homes generating more tax revenue, then the entire community is being harmed by lacking this revenue, following the logic (clearly not the right term to use here ) of the court's decision.




This is true. Unfortunately, the court's decision here did nothing to correct this wrong.



Again, I ask, where does this stop. Essentially, the creation of tax dollars itself is 'public use' (one could argue it is the most public of uses).



For myself, it is the involvement of private entities. What exactly is preventing these private entities from merely purchasing the property? A similar usage was employed here in Dallas to create a zone for the new stadium to be built. Many store owners were displaced. What constitutes 'just compensation' for this? The value of the building won't do it...that ignore all the costs of building the business back up again. Many of these owners felt they were completely inadequately compensated. Essentially, this is a tool used by big companies to generate extra profits at the expense of those less powerful. Is that really the direction we want to go? How exactly can anyone make their property safe from this?

After much consideration of the previous debates and research I believe Berman and Midkiff were bad rulings.
In laymans terms (for me, please), Berman considers that the poor can be thrown from their homes for improvements and resale to private owners of higher status. Not that the city would spend to improve streets and conditions in the area but simply remove the 'blight' and resell at a higher market value. (affecting the mostly poor in most cases after this precedent).

To counter that in a way, Midkiff considers that people owning vast quanitities of land can legally have their wealth redistributed by the State for no other reason than legally owning too much of it and leasing rather than selling off land. (Where would Donald Trump stand if his landownings were not top notch?) This is anti-capitalist in extreme and I believe it was, as stated in argument, a 'scheme' in order for the State to govern more Oahu land for development. It certainly is/was not illegal to 'own too much land'. We dont have monopoly laws against this. I believe it was a corupt land grab that led to this ruling.
See O'Connors commentary :


She claims the people of Hawaii much as the settlers of the 13 colonies have sought to reduce oligopoly traceable... (questionable, Southern land, corporate farmland owners etc) This is not Hawaiian native thinking either.
The Native people of Hawaii had their land stolen from them, in many cases could not retain it except through marriage of the clan women to the new white land owners, which the women did comply in order to retain their incestral lands then passed on through offspring. Hawaiians together with whites have a history of owning vast quanties of land amongst the wealthy and the people of Hawaii that O'Connor talks about 'desiring to break oligopolies' really did not exist previous to Statehood. The majority of the new people of Hawaii are almost all imports, perhaps like the settlers of the 13 colonies, do not like 'others' owning land in vast quantities and choose to break oligopolies, however Hawaiians had no problem with their Monarchs nor the land they owned, to date when it was aquisitioned by whites, and neither did the 72 landowners who owned half of Oahu at the time of the Supreme court case. The land WAS theirs, even by half theft. The Court then turned it into WHOLE theft.

Back on topic then, since when is owning too much land a case for State sanctioned redistribution of wealth? Since Midkiff I suppose. In my mind, very un-american.

I think what bothers the most in all of this, again in lay terms sorry rather than judicial terms- is that for most Americans ownership and protection of property is at the core of our Constitution and the basis of our nations values the way most of us understand it. To be secure in our persons, papers and property are the most basic things the Constitution affords us.

This last ruling, and the previous two, removes ANY safety or security we have in owning our own property, thrice, if you are a wealthy landowner sitting on vast empty or built landlots waiting for the value to rise, or a nice family that bought a home fixer-upper in a slow neighborhood or the truly or barely impoverished eaking it out with the pride of at least owning your own home and NOT paying Rent.

I do not believe 'we the people' have misinterpreted the Constitution in the case of eminent domain, I think the Judiciary has sold out higher powers.
If public use meant ANY USE by the State or city in the Constitution, why didnt they just say: The State has the right to seize property from individuals for any use they see fit, with just compensation ?
To me the meaning is clear to protect property owners from unjust condemnation and seizure, the rulings are power broad.
Just compensation is also clear, which I would refer to FargoUT's views on it. I think they thought 'just' was their form, Benjamin Franklins form of JUST.

Artemise is dead on with her statement concerning property rights. Freedom ultimately means nothing without property rights. I'm passionate about the right to property and to the idea that one of the prime directives to government is to protect those property rights, not to destroy them for the economic gain of another private entity. Property rights are the absolute foundation of economic liberty, and property rights are under assault by developers and local politicians in search or higher tax revenues.
This USSC is saying with this ruling that essentially, a person's right to their property ends when the government figures out that that property in the hands of another private owner would generate more tax revenue. With this ruling, we now have to endure under the premise that your home is yours only so long as some developer doesn't convince a politician that if they could get their hands on that property they would build something that would be so much more valuable and pay many more dollars in taxes?

Oh look, it's already happening.

Limk

The USSC ruling has disgusted me beyond belief. The arguments concerning precedent have no impact on my belief that the core of freedom and individual rights rests on the right to own property. Once that right is gone, we have ceased to live in a free society and we are reduced to the status of a third world nation.

Jeremy Bentham once wrote that where there is no law there is no property, and where there is no property, there is no law. You can have tyranny with private property, but you cannot have freedom and the rule of law without it.

I learned alot on this thread, thanks guys - I have taken great interest in this debate because of my own interests in real estate developement.

In all this debate- I have actually learned something, there is a silver lining in this decision, and perhaps the liberal judges weren't so bad after all in this ruling- please let me explain

In many SCOTUS decisions, the feds over-ride state's powers and prohibit certain laws from being enacted, and establish federal authority over state authority, and prohibit the state from doing "X"- but in this decision, the "liberal" judges are practically begging the state's to take local control- they cede power BACK to the local authority, from now on, at any time, the conneticut goverment (new london is in conneticut, right?) with a referendum from it's citizens, could null this decision by making this kind of eminent domain decision illegal- any state in the union can make this decision moot by passing laws re-defining what level of "public use" they can live with

Isn't state's rights a conservatie issue?

There is a supreme check on eminent domain power in this case- the power of the poeple to strengthen the power of the fifth amendment by better defineing what kind of eminent domain power they wish to enact.

I have changed my position on this subject- most poeple don't even CONSIDER eminent domain issues until this decision- and now, while it is a hot button issue, they can either call thier local state legislator/senator (whom are far more accountable to the voter, and you might even see him/her at the grocery store, very good access) to either amend thier state constitution to dis-allow this kind of behavior, or even simply change the law, never allowing a local goverment this kind of abuse again.

Power to the poeple! LOL

CR, you're right this is and should be a state or local rights issue, instead of federal. And I'm a states rights type of guy.....but in eminent domain cases around the country greedy local politicians are condemning property for the sole reason of turning it over to developers for a gain in tax revenue. All tyranny doesn't reside at the federal level....and unfortunately not all localities and states allow for initiative and referendum by the people. All some may be able to do is vote local politicians out of office, but by that time the damage is already done.

Fortunately, some states and counties are moving to strengthen property rights in light of the USSC ruling.

Link

The problem with viewing this as a "states rights" issue is that there will be inconsistency across the country on the issue. Some states will amend their constitutions to put teeth into the "public use" term. Others will not. If the property rights of individuals is a fundamental right, then it ought to be available to everyone. This is similar to the issue of abortion. Although ironically, different in that abortion has no clear textual support in the constitution, unlike the fundamental right to be free from the government seizing private property for anything but public use. If Roe got overturned, it would simply be turned over abortion regulation to the states. Is this acceptable? What is the difference?

"greedy local politicians" are FAR more vunerable to local outrage than at the federal level- if the New londoners are outraged, they will change the law- there seems to be no local outrage at this one- and one has to wonder "why"- perhaps THEY want to see the change in this area? perhaps the local folks DO think of this area as a "blight"- I say this because I am part of a couple of car sites with new london members on it- and they are very conservative, typical of car guys- and they don't see what the fuss is about in this neighborhood, and in fact, think that the holdouts are harming that area with thier precence, because the area is in a massive decline, and see this as an appropriate use of eminent domain.

This is a very rare time when I have changed my position on a subject, simply because there is an easy check on this decision, and those justice's in the majority provided an outstanding "out" for this decision- something VERY rare in a SCOTUS decision.

DTOM- would you agree that this is probably one of the easiest decisions the SCOTUS has ever made to over-ride federal definitions?

I completely agree with you on most points, the only thing I would add, is this.
We faced the very same problem where I live in Alabaster, Alabama. Wal-Mart wanted to come in and put in yet another super store. We have three in a 20 mi. radius. Residents in the area were poor, and the area wasn't the most pleasing to the eye. There wasn't a huge public uproar here either, except by people who value property rights for all, and of course the residents themselves.
Same game plan as New London. Declare the area 'blighted', knowing the residents don't have the financial resources to to fight city hall over the declaration. In the end, we are now saddled with yet another Super Wal-Mart, more precedence being set to confiscate private property, and the Alabaster City Council gets more money to spend.

We have to keep in mind that the majority of sheep......I mean people who don't get concerned about the loss of property rights, either aren't property owners, or aren't having their property taken from them......yet.

I don't put as much stock into the opinions of people who aren't losing their property.

You are essentially right DTOM- I am not really disagreeing with you here- but if poeple are THAT sheepish- do we really need to protect them from themselves? Perhaps it is truly time that the US is declining from our own apathy and willingness to cede power to others?

CR, when we fight for property rights, we aren't fighting for the people who aren't concerned, we're fighting for our own survival, because eminent domain abuse can happen to each and every one of us who own property.
I fully understand the apathy of lifelong apartment dwellers and renters, after all eminent domain likely won't ever affect them. It's just a shame that their apathy extends outside their apartment walls and seeps into an erosion of one of our most basic rights.
This fight is not in totality, about the right to own an piece of land. It is ultimately about the right to be free citizens, not subject to tyranny of a state. It is ultimately about the right as a human being, as an individual, to chart ones own destiny and be secure that that which we strive to attain and build cannot be seized on a whim. This is a struggle that must transcend party affiliation, class division and economic status if we are to survive as a democracy.

JLMA



The problem is, are we still arguing in a vacuum or not?? Me, siding with Thomas, would not overturn Berman If the ruling went 5-4 the other way, could we be assured Berman would have been revisited.

You say there is plenty of precedent outside of Berman for government turning over seized property to private entities, where is this in the Constitution. Is Thomas willing to overturn every one of these cases? I didn't get that impression. I don't think he is as strict as you believe him to be.



More than likely, no. That is why it is called poverty. It is below