This land belongs to you and me... until the city condemns it to build a strip mall
By Jim Dallas
Lots of smart people (like Kuff) have already commented on the Supreme Court's ruling this week in Kelo v. City of New London. Unfortunately, I still haven't had a chance to read the opinions in full, or comment on them. Moreover, I'm still at work and can't type up a wonderful dissertation on Kelo right now. So let's get busy with the quickie hit-and-run rant:
(1) First of all, this is not an activist decision (I've already run into freepi who insist otherwise). Look, people, the Kelo majority, love it or hate it, is basing it's decision on judicial deference, not activism, when it continues to apply a threshold "rational relations" standard in assessing whether a taking is for a public use. Basically, they're saying they don't want to impose their judgment as nine black-robed judges on the states (and by extension, municipalities). After all the whining after Roper v. Simmons ("the tyrants are telling us not to fry seventeen year olds!!!!"), the Court finally throws a bone to the states rights crowd. Beggars can't be choosers, you know.
(2) That said, we're Texans, and if there's one thing we hate, it's France. If there's two things we hate, it's the French, and the government taking away our private property (do you realize hurricane evacuation orders were not mandatory in this state until just this last month?!?)
But of course, since we've still got our states rights, the Legislature can protect us from eminent domain abuse. Enter, stage right, Rep. Frank "All your uterus are belong to us" Corte (R - San Antonio), who is championing a constitutional amendment to protect our private property, insofar as by private property one does not mean "private parts."
Frankly, I have no idea how the proposed amendment relates to school finance, but I'm hopeful that it or something like it will prevent the Communist Terror from taking over Freeport.
(3) Finally, the incomparable SCOTUSBlog argues that Justice Kennedy's concurring opinion - which argued that eminent domain seizures where the "public use" is merely pretextual may not meet the rational relations threshold - should be interpreted as controlling. This will create a lot of work for land-use attorneys in the next few years. Luckily, I've been giving some thought to going into this field if I can survive another two years of school and pass the bar.
I love you Justice Kennedy!
Posted by Jim Dallas at June 24, 2005 03:11 PM
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Not only is the decision not activist in the deference to local governments sense, but it's fairly clear that the result is required by stare decisis. There are a number of prior SCt cases that read public purpose broadly to allow government to give land to private entities, such as corporations, to stimulate economic development, employment, etc.
I generally agree with most comments thus far that as a matter of policy, the decision may not be the best idea, and that a searching inquiry into "pretext" is certainly a good check, in theory (institutional competence and clear standards questions aside).
I have also heard arguments that a broad reading of public purpose strategically makes it more difficult for "Constitution-in-exile" types to push takings jurisprudence towards the Scalia-Thomas view. I highly doubt that this was on the minds of any of the Justices in the majority, but observers have noted this possible implication.
