Friday, June 24, 2005


     The Supreme Court ruled yesterday that local governments can seize land if the purpose is to improve it. "Improve it" apparently also means the same as "increase the tax base". Legal watchers are predicting a retail bonanza, as businesses target run-down neighborhoods in otherwise expensive areas for seizure.
     This is really a tragedy on many levels. 1) One of the main pillars this country was founded on was property rights. The ability to own land without fear that it would be taken at the whim of the government was encoded into the Constitution (or so I thought). 2) The effects of gentrification, which have always been hard on the poor, will now be devastating. Until yesterday, poor residents may have had problems paying their rising property taxes, but at least when they sold, it was to the highest bidder in a hot market. Now they won't even get the choice to sell high. They'll be forced to sell at the appraised value.
3) The conservation movement may have just been shot in the back. Modern conservationists have begun purchasing land to protect it. Private citizens have been buying empty land so that it might stay empty, not relying on the cities and states to preserve wilderness. Today, said cities and states can simply take the land away, rendering any attempt to keep any pastoral beauty pointless.
     However, as much as I despise the implications of this ruling, I cannot say that I would have not done the same place in the justices' shoes. (robes?) The applicable clause in the 5th Amendment says, "nor shall private property be taken for public use, without just compensation." The argument, therefore, is over the term "public use". New London, Connecticut, argues that shoring up the tax base is in the public interest, especially when the blue-collar city has been depressed for some time. That is, New London is using the seized land for revenue. As odious as this is, it is a legitimate argument. The dissenting opinion from the Supreme Court makes 4 arguments, 1 legitimate, 2 stinking of judicial activism, and a 4th argument that's a little of both. Argument 1: Increasing the tax base is a public interest, not a public use. This is a legitimate argument. In this case, for some reason, it did not resonate with 5 of the justices. Argument 2: Now, "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." While true, it does not address the Constitutional issue. It's rhetoric better suited for the legislative floor, not the courthouse. Argument 3: Thomas says that because past use of the Public Use clause has been mostly limited to public works like canals, highways, and utilities, it should stay that way. This reminds me of the Republican claim that although the Patriot Act allows the Feds to invade your privacy, please trust that the government never will. Bottom line - if the law says it can be done, rest assured that someday it will be done. There are 280 million people living in the country. Not everybody out there plays nice. Argument 4: "discrete and insular minorities" will suffer for the overall interests of everyone else. That is, we're robbing the poor to steal from the rich. This is a true concern, and actually has some legal standing. Unfortunately, it's not illegal for the government to shift resources from the poor to the rich. If that were the case, the Bush tax cuts would never have been. However, it is illegal to discriminate against Blacks. If it could be shown that allowing property seizures for economic development would disproportionately affect Blacks, you could say that it would be illegal (although not unconstitutional). Unfortunately, while that still remains a possibility, nobody can prove it. And there is no law against discriminating against poor people.
     Despite my misgivings towards amending the Constitution, this is clearly a loophole. The Supreme Court did their job, allowing a state the right to do what it is Constitutionally allowed to do. If we want to re-examine "Public Use" and redefine it to mean, "Public Works", we'll have to do that with legislature, not with the courts. A sad day for America, true, but not because justices did not do their jobs correctly.


Sylvana said...

Thomas was opposed. "past use of the Public Use clause has been mostly limited to public works like canals, highways, and utilities, it should stay that way." I'm sure was an explanation for his opposition.

I don't think this was a clear loophole. I think that this was a stretching of definition. The intentions of the Constitution is clear that the people of this country should be able to own their property without fear of having it taken away for any old reason that comes along. Just compensation is rarely given in these cases. The people who are living there are there because they can't afford to live anywhere else. What should be done is that they are given fair market value and a cut of any profit made by these developers. Or maybe the developers have to get them housing some place else of equal or lesser value, also factoring in the added expenses of travel to the person's job. I have no rationale to back this deal up other than this topic pisses me off.

rusty said...

This reminds me of the Republican claim that although the Patriot Act allows the Feds to invade your privacy, please trust that the government never will. Bottom line - if the law says it can be done, rest assured that someday it will be done. There are 280 million people living in the country. Not everybody out there plays nice.

I thought nearly the same thing, but didn't word it as well in my post.

alex said...

I agree with sylvana this is not a loop hole but a stretch and a horrible one at that. The fact that in the past eminent domain was only used for canal's and such sets a precedent for how eminent domain shoulw work other wise it would have long been used for expansion of the tax base and such. On top of that i agree with the wall street journal

No one disputes that this power of "eminent domain" makes sense in limited circumstances; the Constitution's Fifth Amendment explicitly provides for it. But the plain reading of that Amendment's "takings clause" also appears to require that eminent domain be invoked only when land is required for genuine "public use" such as roads. It further requires that the government pay owners "just compensation" in such cases.

The founding fathers added this clause to the Fifth Amendment--which also guarantees "due process" and protects against double jeopardy and self-incrimination--because they understood that there could be no meaningful liberty in a country where the fruits of one's labor are subject to arbitrary government seizure.

on top of that scot perhaps you should consider this other point the journal brings up

And it's not just the "public use" requirement of the Fifth Amendment that's undermined by Kelo. So too is the guarantee of "just compensation." Why? Because there is no need to invoke eminent domain if developers are willing to pay what owners themselves consider just compensation.

Just compensation may differ substantially from so-called fair market value given the sentimental and other values many of us attach to our homes and other property. Even eager sellers will be hurt by Kelo, since developers will have every incentive to lowball their bids now that they can freely threaten to invoke eminent domain.

The supreme court has just opened a pandora box. I for one think this will create a large disincentive to invest in realestate.

Ben said...

The Supreme Court has decided that the words "public use" now read "public benefit." In this specific case, the public will NOT be USING the Pfizer facility, they will only get the benefit of increased tax revenues.

I doubt anyone can deny that this decision is completely against what the writers of the Constitution meant. Only someone with an agenda can say this is Constitutional. It's an obvious stretching of word and meaning, and it's disgusting. The entire reason that provision is in there in the first place is to protect people like the New London homeowners. Some of them have had these homes in their family for over 100 years, and the homes are well kept, not trashy and falling apart. This is exactly why the foudners wrote that part of the 5th Ammendment, to protect property owners from overreaching governments.

BTW, the Patriot Act provisiosn already existed. All it did was extend such provisions from criminal investigations to terror investigations. But go on and refer to it dishonestly, it's no different than any other left-wingers do.

Increased tax revenue is NOT a public USE, it is a public BENEFIT, and the Supreme Court's left-wing has trod all over the document once again. You can't actually justify their ruling without saying something along the lines of "if you read such and such as such and such." Anytime you have to read something a different way to make it fit your agenda, you are being intellectually dishonest and going against both the word and the spirit of the Constitution. It's disgusting. This is why Bush needs to appoint conservative, strict constructionists judges. Conservative judges, Thomas especially, are known for reading laws as they are written, and not making up their own interpretations to fit agendas, as Souter, Kennedy, et al, have done.

Scott said...

Ben, what's the definition of "use" and what's the definition of "benefit"? The word "use" has one of the longest definitions int he dictionary, because it is so versatile. "Using" the land to increase tax revenue may be shady and immoral, but it's constitutional.
So much for you wanting to limit the fed's power over states. It wasn't the federal government that confiscated the New London property - it was a local government working under Connecticut rules.
Also, just compensation doesn't mean "asking price". If that were the case, there would be no such thing as eminent domain, even for roads or public utilities. Since even the most conservative elements of the court agree that that is constitutional, your argument that "just compensation" can only be whatever price the homeowners want. The rules for this eminent domain case center around the word "use", not the compensation.
Instead of bitching about why the supreme court didn't overrule a state's actions, take a look at your own state constitution and see how easy it would be for Georgia or New York or Virginia or Wisconsin to steal your land. The feds aren't interested in putting up a Walmart where your backyard used to be. Your county might be.

Ben said...

I wasn't bitching about the just compensation part, though it's obvious you'd get more from a private developer who has to convince you to move, than from your town who can point a gun at you and force you to move.

I'm railing at the Supreme Court for not reading the Consitution. If Atlanta takes your house and sells it to Company X for their new corporate headquarters, the public is not USING the property. Sure, take out your dictonary and find a way to stretch it, and you know damn well the difference between what it's supposed to mean, and what it has become. Hell, it's all over the Federalist Papers, the essays written by the people who wrote the Constitution regarding what they meant in various parts.

I do hope to hell that my state government legislates against this abuse of power. Thing is, they shouldn't have to. It's clearly illegal already by the 5th Ammendment, and only someone with an agenda would think otherwise. It was illegal according to the Constitution 100 years, and nothing has changed since except that lawyers get paid ever more money to stretch the meaning of words and phrases. It's sickening, and I don't understand how you can go so far out of your way to justify it.

Scott... If you really want to say the word "use" can be stretched to fit any situation you feel like, then why is that provision in the Constitution in the first place? It's been rendered completely meaningless, because people like you are going to ignore what it's supposed to mean to stretch it to mean anything. If you aren't going to follow the Constitution as it was meant to be, and has been for all but the last 30 years, why bother with it at all? Either follow it all the way, or get rid of it. Sorta following it, but only when it fits your agenda, is an insult to 200 years of American history.

Sylvana said...

Ben- what do you mean "Supreme Court's left wing"? You mean the short wing of TWO people? It took FIVE to get the ruling in favor of the developers and one of those justices in that very short "left-wing" is actually a conservative according to his bio. Don't blame the Democrats for this. I am very disappointed that they would vote the way they did, but it took more than them to get it done.


Scott said...

Sorry, I meant to add what they were protecting against. New London has at least a weak justification of the word "use" - to maximize tax revenue. Say the governor decided that your house would be a nice place for his nephew to live. Even if he compensated you, there is no conceivable benefit to the public. Say the mayor thought your 5 acre lot was a good place to build a private lake for his friends. Again, no public benefit.
In my mind, New London would have to show that not only would the city get additional and much needed tax revenue, but that it could not get that revenue by having the development located elsewhere in the city. Unfortunately, developers play one city off the next, and one state off the next, by "bidding" their location decisions based on how many incentives the local government can give them. This is just another way for cities adn states to bribe companies to locate there. I believe it should be illegal for local governments to compete against other governments for business. Keep the business in the US, sure - give htem incentives to do so. But don't let Connecticut compete against Delaware by giving away its citizens' land. Don't let Georgia try to get BMW to build a plant there instead of South Carolina by throwing tax incentives at the Geran company.
And absolutely check your state rules and talk to your representatives, because despite all your bitching, eminent domain for private projects is now 100% legal. Stop whining how this time the court isn't as activist in overturning local laws and change the local laws! How long do you think it will be before developers try this in another state? Get state constitutions changed to keep this from happening again!

Ben said...

Oooh, just as good an idea! Get the Supreme Court to take reading lessons!!

And Sylvana, 4 of the 5 jsutices who supported this ruling vote the liberal position in basically every situation. And since all 3 of the definitely Conservative jsutices dissented (meaning they actually read the 5th ammendment), then yes, this was definitely the liberal wing of the Supreme Court driving this. You won't find any SCOTUS scholars who disagree with that.

Ben said...

Scott, thank goodness we have a Conservative in as Governor of Georgia now. He's already said he's cares very much about private property rights, and I expect we'll see legislation on it soon.

To be honest I'm surprised you're against eminent domain. The case can be made that it's not any different from taxation, where they steal my property in the form of capital. I've certainly never heard you rail against higher taxes.

Sylvana said...

Ben, It's not the same as taxes. As you can see by eminent domain the wealthy and powerful benefit more from our country than others. So it is only fair that they pay more taxes. They should at least have to pay their share instead of getting all these "oh, you have money, here have some more" tax breaks.

Mike said...

I agree with you Scott, in this decision is horrible. I blogged about it too. Congress should draft an amendment saying you cannot take property from one private citizen and give it to another private citizen(s).

One point I have to take exception to: "Unfortunately, it's not illegal for the government to shift resources from the poor to the rich. If that were the case, the Bush tax cuts would never have been." Nobody "shifted resources" from the poor to the rich. That is a myth. Everybody who paid taxes got a tax cut. Nobody's federal taxes went up. So to say resources were taken from the poor and given to the rich is false. Sorry, I know that's waaaaay off topic, but I couldn't let it go.

Ben said...

Sylvana, to start off, something like 80% of our tax revenues are paid byt eh top 1% of earners, so they pay more than their fair share.

You seem like you resent the fact that they are rich and you are not. There might be resons for that, like they are smarter, work harder, are more capable than you. Sure, some rich people just inherit their money, but many more work their asses off and make good decisions, and thankfully for you and me, we live in a country where hard work can make you rich.

Taxes are confiscation of my property to give to someone else, just like eminent domain in the New London example. The only reason you can come up with for why it's different is summed up by class envy, and your desire to soak the rich is not relevent. Whether a person is rich and has their property stolen in taxes, or poor and has their property stolen by the use of eminent domain, it's still stealing, depsite the fact that both are supported by law.

Sylvana said...

Taxes aren't stealing, they are paying for services that this country provides to individuals, and as I have already said- the rich get far more of those benefits than those that are poor, so they should pay more taxes.
If you think that simply working hard and being smart gets you ahead in this country, you are so delusional.

Also, your numbers are off on that statistic. It is the top 20% that pay 80% of the taxes. But it is the top 1% of households in the US that own ~40% of the wealth. So, why don't the top 1% pay 40% of the taxes??

Throughout history when wealth gets that concentrated revolution has always followed.