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Democracy, Kelo-Style:

When I first read Kelo, one thing that jumped out at me was the cute and endearing description of the way in which local land-use and redevelopment plans are made and implemented. According to Justice Stevens, all the "stakeholders" get together and thoughtfully and selflessly deliberate on what is best for the community. Then in the end, after thoughtful reflection and soul-searching (but heavens, no politics!), it just turns out that what is good for New London and the Kelo homeowners coincidentally turned out to be exactly what Pfizer wanted. Justice Stevens's warm and cuddly view of local land-use politics took me back in time to my 9th Grade Civics Class where I learned that this is how democracy works (as an aside, strangely enough, I lived in Ann Arbor at the time my 9th grade civics teacher Mrs. Sandalow was married to the Dean of Michigan Law School at the time).

While inspiring and heart-warming, may I gently offer the opinion that Justice Stevens's description of local land-use politics is well, a bit naive? This description seems a bit closer to the mark in describing my impressions of how such decisions are made:

On May 21, Albert G. Mauti Jr. and his cousin Joseph hosted a fundraiser for Assemblyman Joseph Cryan at the Westmount Country Club in Passaic County. The two developers and family members picked up the $10,400 dinner tab, donated another $8,000 and raised more than $70,000 that night for the powerful Union County Democrat, according to state election records.

Three days later, the governing body in Cryan's hometown of Union Township — all Democrats — introduced an ordinance paving the way for the Mautis to build 90 or so townhouses on six acres of abandoned industrial land along the Conrail line in town.

There is just one problem: Union Township doesn't own the land.

It is owned by Carol Segal, a 65-year-old retired electrical engineer. Over the past 10 years, the Union Township resident says, he has spent about $1.5 million to acquire the property, and he, too, wants to build townhouses there.

Segal said he met with Cryan, who is head of the township's Democratic Party, and other local officials "scores of times" over the past five years to discuss the project. He claims the talks turned adversarial after he rejected proposals to work with various developers they proposed.

On May 24, the five-member township committee voted unanimously to authorize the municipality to seize Segal's land through eminent domain and name its own developer.

"They want to steal my land," Segal said. "What right do they have when I intend to do the exact same thing they want to do with my property?"

Cryan, 44, a rising star in state Democratic politics, denied any connection between the fundraiser and the committee's vote. He described the Mautis as "good friends," but said he played no role in shaping the township's redevelopment plan.

Tony Soprano, call your office.

Stephen Macklin (mail) (www):
The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

Sign the petition here.
10.6.2005 9:47am
Public_Defender:
The current owner's plans may be the biggest deterrent to eminent domain. If he can show he has a contract for $13 million with expected profits of $15 to $20 million, the jury setting the value of the property might award him $33 million.

A taking in this case doesn't seem as unjust as kicking people out of their homes. At the end of the day, the current owner here wants to have money, not land. If his land is taken, he still gets money, not land.

But that's policy, not con law. If I remember Kelo right, a taking merely to transfer property from one private owner to another with no change in the propective use may not qualify as a "public use."
10.6.2005 10:01am
Marcus1:
I'm totally confused how conservatives are so willing to decry the practical effects of giving the government wide discretion in condemning property.

Are you saying this is something the Court should have considered? Sounds kind of like Lochnerism to me.
10.6.2005 10:36am
lyle (mail):
anyone digging around the Dallas City Council's office records to determine if Miers approved of any takings while in office? Or voted in favor of developments based on takings?
10.6.2005 10:38am
anonymous coward:
Marcus1: The anti-Kelo crowd believes Kelo was bad constitutional law, but they care about the decision because of the purported consequences. A bad decision (bad by whatever not-results based jurisprudential theory you hold) that has bad consequences (e.g. screwing widows and orphans out of their property, sucking out fetus brains) is more objectionable than a bad decision that has no, or good, consequences. The latter might be wrong as a matter of law, but it's also not going you judge worth spending your life fighting.
10.6.2005 10:51am
DC Lawyer (mail):
What amazes me about the Kelo decision is how many conservatives were apparently unaware of the state of eminent domain law as it has been practiced since Berman and Midkiff. They're shocked, shocked(!) that the Court would rule the way it always has.

But Prof. Zywicki makes two serious errors in his piece that must be corrected. First, what he derides as a "cute" and "endearing" description of how local government works is actually what occurred IN THE CASE. Justice Stevens is not talking about Passaic County NJ or any other such place. Living where I do not far from Prof. Zywicki's law school, I happen to know that nothing gets done in Arlington Co., VA, without being vetted through a half-dozen citizen commissions.

Indeed, at least the concurring opinion suggests that were the New London process not so democratic, the Court might decide differently. That's actually one of the ways, arguably, Kelo NARROWS, not expands eminent domain law from Berman and Midkiff. Justice Stevens is actually deciding the CASE not the state of local government law in America. How novel.

The second error is factual. Once again Prof. Zywicki repeats the fallacy that this somehow benefitted Pfizer. Pfizer's choice to build its plant in New London may have sparked city plans to redevelop, but none of the land seized through eminent domain went to Pfizer. None. Pfizer bought its own property, without any threat of condemation. The city of New London then explored developing adjacent property with a hotel, highend retail, condos, and an oceanfront park (which by any definition would be a public use and has nothing to do with increased tax revenue). Pfizer had nothing to do with the lawsuit.

I understand conservatives don't like the state of property rights law in America, but having one's facts straight about the case and precedent sure would be nice.
10.6.2005 11:28am
Bezuhov (mail):
What's conservative about being concerned about the powerful pissing on the rights of the powerless? Just because the demos signs off on that power doesn't make it any less injust.
10.6.2005 11:44am
DC Lawyer:
Actually, Bezuhov, quite a few liberals (including many liberal members of Congress) are ticked about Kelo as well, which perhaps I should have mentioned. But most of the reaction to the case has been sparked by Institute for Justice and conservative/libertarian groups who have a broader takings agenda and see this as a way to fan the flames.
10.6.2005 11:53am
Rob Michael:
DC Lawyer, do you really think that when Kelo came out conservatives actually perked up and said "This is great! Now we can show how EEEEEVIL government really is!"

That's pretty silly. People (conservatives and liberals) are mad about Kelo because it has suddenly become clear that innate notions of fairness and property may not actually be the law of the land (and maybe haven't been for longer than Kelo).
10.6.2005 12:28pm
magoo (mail):
DC Lawyer -- Excellent response to Zywicki's rant. If he comes back and says "It doesn't matter whether Pfizer obtained land, it still benefitted," I would add that EVERY state court judge who examined the record, including the Justices who ruled against New London, concluded that the New London officials acted in good faith, motivated by a desire to help the unemployed and the least fortunate in their community, and not as pawns of Pfizer or any other private interest. Are those judges in Pfizer's pockets too, Todd? Is the conspiracy that vast?
10.6.2005 12:34pm
Marcus1:
>The anti-Kelo crowd believes Kelo was bad constitutional law, but they care about the decision because of the purported consequences.<

That's not how it sounds when Todd makes fun of Stevens' "cute and endearing" description of how government actually operates. That's a criticism of Stevens' judicial process.

Contrary to your assertion, Anti-Keloers are consistently showing that their objection is entirely results-based. The way "public use" is phrased in the Constitution, it is not written as a tight restriction on government power. All the conservative commentary I've read just ignores this and talks instead about how, as a general matter, our founders would be horrified by this result. They don't talk about what the constitution actually says, because that's not their argument. The hypocrisy is blatant.
10.6.2005 12:41pm
Brian G (mail) (www):
I was not shocked the Court ruled the way they did. I was shocked they didn't see how the Michigan Supreme Court realized their folly in Poletown and decide to follow their example.

What is most stunning is that libeals who think it is the end of the world if a government computer knows that you flew from Tulsa to Roast Beef, Indiana 3 years ago on a Tuesday but couldn't care less than the government can have this type of power.

Plus, I may only go to a second-tier law school, but I know public use means public use, not public purpose. I guess you have to go to Yale or Harvard to know that the term "public use" means so much more than its dictionary definition.
10.6.2005 12:43pm
H. Tuttle:
"The current owner's plans may be the biggest deterrent to eminent domain. If he can show he has a contract for $13 million with expected profits of $15 to $20 million, the jury setting the value of the property might award him $33 million."

My understanding is that the "just compensation" is not the foreseeable investment-backed expectation value of the holder, but simply the value to the public entity in comparison with similarly situated land in the area.
10.6.2005 1:09pm
marc garber (mail):
I continue to be frustrated with the attacks on Kelo, while at the same time these same critics stand mute (as far as I can tell) about Haliburton-style lobbying that gets coupled with sizeable contributions and leads to enormous government contracts. To me, Kelo and the state of corporate lobbying are flip sides of the same coin.

The property of regular folks -- taken by the government through tax dollars or condemnation -- end up in the pockets of corporations that have access to decision-makers I could only dream of. Call me a progressive; call me a liberal; call me a libertarian; call me a conservative. Just call me when the Kelo critics start complaining about how corporations do business with the government.
10.6.2005 1:15pm
Public_Defender:
. . . People (conservatives and liberals) are mad about Kelo because it has suddenly become clear that innate notions of fairness and property may not actually be the law of the land (and maybe haven't been for longer than Kelo).

Of course, this doesn't apply to every Kelo critic, but this is one of the best descriptions of the anti-Kelo movement I've seen.

Although I think the issue is as close as the 5-4 margin indicates, the majority has the better constitutional argument. Many Kelo critics fail to see that Kelo was not a radical decision. The only surprising thing was that it was so close.

That said, the Kelo critics have the better policy argument. It's good to see that Kelo herself is still in her home and that the New London Development Corporation is being threatened with de-funding.
10.6.2005 1:15pm
Eh Nonymous (mail) (www):
DC Lawyer: I find it very irksome the way you keep looking at "facts" and "history" to decide whether something is correct or not. This is a blawg. Please confine yourself to inaccurate hypothesies and armchair ravings.

(/sarcasm)

In other words, thanks for pointing out when people take liberties with facts - playing fast and loose is fine for the pub, but dangerous and unwise when discussing policy. You can warp people's minds by chanting "Pfizer" loud enough long enough.
10.6.2005 1:31pm
erp (mail):

I believe this post belies the argument that Miers isn't qualified to be a justice because she doesn't have the brilliant intellect, requisite knowledge of constitutional law and other profundities, not to mention ivy league credentials, of the five sitting justices who okayed the Kelo Konfiscation Kaper which,, it seems clear will be overturned by a future court, hopefully the one now in session.
10.6.2005 2:08pm
Public_Defender:
The Union Township folks (from the article in the professor's post) should learn a lesson from Kelo--if you want it built anytime soon, don't use eminent domain.

According to the New London Development Corportation's website, they started the studies needed to lay the groundwork for the taking in 1998. Seven years later, the houses are still up, Ms. Kelo is still in her home, and the project is stalled.

If Union Township tries eminent domain, it could stall the development of townhomes for years. But if the township lets the private sector take care of itself, the townhomes will be up much, much more quickly.
10.6.2005 2:08pm
DJ (mail):
Yeah, this sort of fuzzy-headed faith in local government is a bit of a surprise coming from Stevens, who sort of got his start helping to ferret out machine corruption in Cook County and who (at least in the 1980s First Amendment patronage cases) confirmed he was a goo-goo reformer. What gives?
10.6.2005 2:10pm
cfw (mail):
"Plus, I may only go to a second-tier law school, but I know public use means public use, not public purpose. I guess you have to go to Yale or Harvard to know that the term "public use" means so much more than its dictionary definition."

Interesting point. Note that the Thomas dissent cites a dictonary from 1773 as supposed proof of what public use means (or meant) back in 1787. His ditionary definition is simply a punt of the hard questions.

For example, it does not tell us how long the condemned proeprty must be held (1 year, 3 years, 5 years) before it can be sold. It does not tell us if the public can own bare title and have the facility managed by a private entity (say a hospital managed by Yale but owned by NLDC). It does not tell us what is or is not public enough (stadium? large theater?).

Thomas cites to Blackstone, who blesses a mill owner flooding upstream land, with fair compensation for the upstream onwers, since a mill is privately owned but helps the public.

Guess what, Pfizer is publicly owned and its products (on balance) help the public. So even if we conflate Pfizer with NLDC, original intent does not work in favor of Kelo here, which is probably why Thomas got no votes in support of his opinion, and had to cite a dictionary as his "authority."

Here, the framers look to have been intentionally vague. What has developed since 1787 is the idea that a public entity, properly constituted and given ED powers, can declare something a public use. So long as the Pfizers of the world pay fair value, and the Kelos of the world receive fair compensation, and the NLDCs are properly responsive to the electorate (ultimately), the public is using the property.

Hair-splitting about how much of the public must use the property at one time (or ever) is gloss on the public use language, not supported by history, at least as far as I can see. Obviously not all of the public can use any property at one time, eh?

Here, the NLDC people did what they could to bring 2000+ jobs from Pfizer alone to New London, knowing the sub base was slated to close (eliminating thousands of area jobs). What is so sinister and despicable about the NLDC iniative?
10.6.2005 2:13pm
Aultimer:
One two word(s), son: "Plastics Term limits."
10.6.2005 2:26pm
Jerome C. Austriaco (mail) (www):
"Guess what, Pfizer is publicly owned and its products (on balance) help the public."

Guess what, there's a difference between publicly owned and publicly traded.
10.6.2005 2:27pm
DC Lawyer (mail):
See what happens, Todd, when you post stuff like this? Everybody blames Pfizer, which had NOTHING to do with the case. But hey, can't let facts get in the way of a good story.
10.6.2005 2:37pm
Marcus1:
Brian G,

>Plus, I may only go to a second-tier law school, but I know public use means public use, not public purpose.<

The plain language creates no "public use" requirement at all. It creates a "just compensation" requirement.

Private property shall not be taken for public use, unless there's just compensation, it says. The language doesn't create a "public use" requirement any more than it creates a "taken" requirement, by which land couldn't be borrowed. If land can't be taken for private use, or can't be borrowed for public use, it's not due to that particular language in the 5th amendment.

The public use requirement was completely judicially invented. Both sides in Kelo completely ignored this. For conservatives, it's particularly hypocritical, though, since judicially created rights are what they so often rail against.
10.6.2005 2:40pm
DC Lawyer (mail):
Good point Marcus. And don't forget, the regulatory takings doctrine is also judicially created. (Thank you, very much Justice Holmes). Want to rail against a judicially-created balancing test? Start with Penn Central. A true originalist would concede there's no such thing as a "regulatory taking." Must be somewhere in the penumbras and eminations clause. ;)
10.6.2005 2:52pm
Justin (mail):
Here's my question to Todd:

I like you, and I don't want to openly question your jurisprudence. There is a conservative case for treating legislative actions and their effects as they are rather than as they appear in a vacuum. However, Scalia and Thomas have clearly rejected this approach, as have most conservatives on the bench. Formalism has become the bind that ties together textualism. As such, how can you attack formalism here and not in, say, the interpretation of a statute that Congress voted on but did not read? On first amendment grounds and political donations? On labor law?

If conservatives are willing to be honest about how democracy works in general, I can begin to discuss whether or not democracy is a sufficient protection against takings in this instance. Until that conversation occurs, I feel stuck in a prisoner's dilemna, unwilling to cede the point only when it suits the interests of people who will turn around and screw me when the issue suits them.

Besides, given public outrage to Kelo, it seems entirely plausible (more plausible than the idea that voters will vote well funded corrupt candidates out of office over poorly funded uncorrupt one, see 4 Conn J Pub Int L 308) that voters will, in fact, demand state legislatures to ban local governments from such practices in ways that permit a body better designed to make policy tradeoffs than the court to do their job.
10.6.2005 2:56pm
John T (mail):
The plain language creates no "public use" requirement at all. It creates a "just compensation" requirement... If land can't be taken for private use, or can't be borrowed for public use, it's not due to that particular language in the 5th amendment.

Ah, but the sentence says "Nor shall private property be taken for public use, without just compensation."

So yes, there is a perfectly natural way to read it as creating only a "just compensation" requirement-- only if you read it as saying that it requires "just compensation" only for private property taken for public use, but requires no compensation at all for private property taken for other than public use. Several of the Justices considered that reading and (properly, IMO) rejected it as absurd.

There are two ways to legitimately read the statement, either as limiting a taking only to public use, where just compensation is then required, or as requiring just compensation for public use takings, but setting no restriction whatsoever, not even just compensation, on takings for other than public use.

The second meaning is obviously absurd, and it's obviously not what was intended. It was discussed by conseratives, including the Kelo dissenters, contrary to the assertions of DC Lawyer and Marcus1. But feel free to confine yourself to inaccurate hypotheses and wild rantings rather than addressing the facts.
10.6.2005 3:01pm
Daniel Chapman (mail):
I've always thought the argument that "no property shall be taken for public use without just compensation" says nothing about taking land for private use was a little tongue-in-cheek jab at strict textualists. Excuse me if I don't take it seriously. Rhetorical point taken and all that jazz... but it's just not convincing.

Assuming it's valid, however, wouldn't taking property for private use violate the Due Process clause?
10.6.2005 3:02pm
Public_Defender:
See what happens, Todd, when you post stuff like this? Everybody blames Pfizer, which had NOTHING to do with the case. But hey, can't let facts get in the way of a good story.

This isn't entirely correct. As reported here, Pfizer is closely tied to the Fort Trumbull project and to the NLDC:

One board member was a Pfizer vice-president. The board president was married to another Pfizer vice-president. Pfizer wanted the part of New London that included Kelo's house made more attractive to complement its new research facility. The husband of the NLDC president had said, "Pfizer wants a nice place to operate. We don't want to be surrounded by tenements."
10.6.2005 3:13pm
jdd6y:
Wouldn't a true originalist find that Kelo was properly decided (although, improperly reasoned) because the takings clause was never meant to apply to the states and its subsequent application via the "incorporation doctrine" is wrong, from a "strict constructionist" perspective?
10.6.2005 3:35pm
SP:
"Indeed, at least the concurring opinion suggests that were the New London process not so democratic, the Court might decide differently. That's actually one of the ways, arguably, Kelo NARROWS, not expands eminent domain law from Berman and Midkiff. Justice Stevens is actually deciding the CASE not the state of local government law in America. How novel."

So in other words, instead of realizing that the political system is given to abuse and we should proceed with caution, we're going to have a wide open rule that will only further encourage such abuses, forcing the "little guy" who will never have the resources of the Pfizers of this world, to go to great lengths to defend his right to own something... he already owns? Doesn't seem to show a lot of wisdom on the part of Stevens, and it certainly isn't wise to make under your logic every decision a case by case basis. Oh, good for attorney's pockets though...

Oh, and let's not even get started on Kelo's mangling of what a "public use" is.
10.6.2005 3:44pm
erp (mail):
DC Lawyer said it, Pfizer is not involved in Kelo at all. The city wanted to cash in on Pfizer's proximity, not the other way around.

Public use, not matter how you slice it, isn't private use.
10.6.2005 3:49pm
David M. Nieporent (www):
DC Lawyer:

What amazes me about the Kelo decision is how many conservatives were apparently unaware of the state of eminent domain law as it has been practiced since Berman and Midkiff. They're shocked, shocked(!) that the Court would rule the way it always has.

Can you point to any previous time when the Court ruled that naked economic redevelopment, absent any other considerations, was a "public use"? I believe Midkiff (and arguably Berman) was wrongly decided, but the argument that these cases say the same thing as Kelo is disingenuous at best.

Conservatives were not unaware of the everyday practice of eminent domain; they were "unaware" -- because it wasn't so -- that this everyday practice had the blessing of the Supreme Court.


Marcus, The way "public use" is phrased in the Constitution, it is not written as a tight restriction on government power.

The way "public use" was interpreted in Kelo, it represents no restriction on government power. Even if your assertion were true -- you present no evidence for such a claim -- that would not be a defense of the decision.
10.6.2005 3:51pm
Public_Defender:
Pfizer is not involved in Kelo at all.

Wrong. Wrong. Wrong. As I showed above, Pfizer in a major player in the NLDC. You can say Pfizer did not use eminent domain to take any land itself, but you are just plain dead wrong to say Pfizer had no involvement "at all."
10.6.2005 3:59pm
Justin (mail):
So yes, there is a perfectly natural way to read it as creating only a "just compensation" requirement-- only if you read it as saying that it requires "just compensation" only for private property taken for public use, but requires no compensation at all for private property taken for other than public use. Several of the Justices considered that reading and (properly, IMO) rejected it as absurd.

It's not absurd in context. In context, the 5th amendment was designed in consideration of the building of the federal government. The federal government, at that point, needed land (since before then, there was no federal government). The fifth amendment was designed to prevent the federal government from developing itself at the expense of who happened to be in the way.

As such, the 5th amendment was never designed to prevent non-public takings (at best, this was reserved in the 9th amendment, but if you don't believe in unenumerated rights....). To think that the 5th amendment says anything, or implicitly prohibits anything, involving non-public takings, presumes that the founders thought about the idea at all in enacting the 5th amendment. Since the 5th amendment did not consider the issue at all, the dichotomy does not seem absurd either.
10.6.2005 4:08pm
DC Lawyer (mail):
David Nieporent -- yes I can. I refer to a full discussion of your very point in the well-written amicus brief for the National League of Cities -- http://www.communityrights.org/PDFs/Briefs/Kelo.pdf

I disagree with your reading of Berman and Midkiff. But [drawing from the brief] I add to that precedent National R.R. Passenger Corp. v. Boston &Me. Corp., 503 U.S. 407, 422 (1992), in which the Court again unanimously reaffirmed that public use "is coterminous with the regulatory power," even where a condemnation "result[s] in the transfer of ownership from one private party to another."

Older cases that approve the use of eminent domain to
foster economic development? How about these: In Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885), the Court upheld a state "Mill Act," which authorized downstream mill builders to flood land of upstream riparian owners, to secure "the advantages inuring to the public from the improvement of water power and the promotion of manufactures." Id. at 19; see also Strickley v.
Highland Boy Gold Mining Co., 200 U.S. 527 (1906) (approving condemnation of a right of way for an aerial bucket line for a private mining company); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161 (1896) (approving condemnation for the irrigation of private land and comparing public use justifications for eminent domain with those for taxation).

There are actually a lot more cites, I could quote, but I want to spare the readers my reprinting NLC's entire brief here. Read the whole thing. Even if you disagree, its a very interesting brief.

And to the law student concerned about dictionary definitions of "use," consider the following: Webster's Encyclopedic Unabridged Dictionary 2097 (1996)(meaning of "use" includes "service or advantage in" and "help; profit; resulting good"); 1 N. Webster, American Dictionary of the English Language (1st ed. 1828) (meaning of "use" includes "advantage" and "production of benefit").
10.6.2005 4:10pm
cfw (mail):
"Guess what, there's a difference between publicly owned and publicly traded."

I would agree that Pfizer is not exclusively or mostly owned by a public entity. But the public is not a thing, it is made up of individuals. A large chunk of the public owns Pfizer. Another large chunk uses Pfizer products. Kelo or others can own stock in Pfizer if they choose. The framers did not say what they meant by public (meaning what is public enough) in this context.

Thomas, citing to Blackstone, says that a private mill owner was allowed to flood upstream land provided he gave fair compensation for the land. This was for the benefit of the "public" (a limited number of individuals) who would use the mill to grind their grain.

Even in the 1700's, as I read the Thomas part of Kelo, there was precedent for quasi-private (mill owner) benefit from exercise of ED powers.

I suspect if Kelo was up against one individual, say a D. Trump, who wanted the land for a personal putting green, Thomas might have made more headway. This is partly because, in my mind, Pfizer is quasi-public, and intent on using real estate as a factor of production (as opposed to a private putting green for D. Trump).
10.6.2005 4:15pm
Shelby (mail):
in my mind, Pfizer is quasi-public

That's what I told them, but they still won't mail me dividend checks.
10.6.2005 4:27pm
David Sucher (mail) (www):
Insightful post.

One of the tragic things about Kelo is that (for people who understand urban real estate dynamics),eminent domain is simply not a useful tool. The gist is of course that one cannot force markets -- "pump priming" with subsidies does not have a persuasive track-record -- and you are a fool if you try.
10.6.2005 5:07pm
Unnamed Co-Conspirator:
Bingo, jddy6y. But I wouldn't say "strict contructionist" if you mean "originalist." The two are not the same.
10.6.2005 6:29pm
Marcus1:
John T.,

Like the Court, your assumptions are huge, and also unnecessary. Your point is that the plain language is absurd, because it doesn't prevent uncompensated private takings.

But as Chapman points out, the Constitution does not consist of only this one clause. If George Bush took my property and gave it to Dick Cheney for his private use, I'd say that violates the due process clause. It probably violates other portions of the Constitution as well. There's simply no need to twist the just compensation clause around into something that it clearly is not.

An obvious question then is why they even said "public use" at all. My answer: clarity. What would it have said otherwise? "Nor shall private property be taken without just compensation." But that's totally vague. So now if I steal something from Wal-Mart, I have to pay it just compensation?

"Public use" clarifies that what they're talking about is takings by the government. But that's not a "public use requirement." It's a limit on the scope of the clause. If they wanted a public use requirement, they would have said "Nor shall private property be taken except for a public use and with just compensation."

The truth is, it's not even a close call. The language isn't even ambiguous. I was very familiar with the just compensation requirement before I came to law school, because my dad was in litigation for some 12 years about what amounted to "just compensation" for his land. It was only upon coming to law school that I learned about this wacky "public use requirement." The language itself gives no hint.
10.6.2005 6:30pm
Marcus1:
>The way "public use" was interpreted in Kelo, it represents no restriction on government power. Even if your assertion were true -- you present no evidence for such a claim -- that would not be a defense of the decision.<

I agree; as I pointed out, both sides ignored the elephant in the room.

My evidence is nothing more than the plain language: "Nor shall private land be taken for a public use without just compensation."

If I say to my son "Don't take my car for joyriding without paying me just compensation," does that create a "joyriding requirement"? As I said in my post above, it's not even a close call. He may or may not be able to take my car for other purposes, or to use my boat or my truck for that matter, but I certainly didn't specify there.
10.6.2005 6:42pm
John Thacker (mail):
If George Bush took my property and gave it to Dick Cheney for his private use, I'd say that violates the due process clause.

"Public use" clarifies that what they're talking about is takings by the government. But that's not a "public use requirement." It's a limit on the scope of the clause.

I don't follow. If "public use" obviously clarifies that what they're talking about is takings by the government, then clearly takings by the government are those for public use. Otherwise, to follow your logic, if they merely wanting to say "takings by the government," and if "takings by the government" were allowed to encompass things other than for public use, then they would have said "Nor shall private property by taken by the government except with just compensation."

Either takings for public use are synonymous with takings by the government, which is my position and apparently what you argue, or takings for non-public use are permissible yet utterly ungoverned by the just compensation clause.

As a quick clarification, then do you believe that takings by the government for private use (and thus possibly some eminent domain actions) violate the due process clause? In other words, are you arriving in a similar place because you believe that elsewhere in the Constitution prohibits takings by the government for non-public use? Or do you believe that takings "for public use" require "just compensation," but that some takings for private use require no compensation, so long as standards of due process are met?
10.6.2005 6:46pm
John Thacker (mail):
Whoops, missed closing a tag there. Apologies.

If I say to my son "Don't take my car for joyriding without paying me just compensation," does that create a "joyriding requirement"? As I said in my post above, it's not even a close call. He may or may not be able to take my car for other purposes, or to use my boat or my truck for that matter, but I certainly didn't specify there.

Yes, it's not even a close call. I would obviously assume that in that case your son would not be able to take your car for other purposes in the absence of other statements, and so would a reasonable observer. If I said "Don't take my car joyriding without my permission," and someone then took my car without my permission but tried to claim that they weren't using it for joyriding but for running an errand, I would consider it sophistry and casuistry.

That is because the underlying assumption is that people don't borrow your car without your permission. Similarly, there's a clear underlying assumption that private property is a valuable right, and that forced sale of property is not normal. Hence the assumption that the clause is defining under what conditions the exception to the norm occurs.
10.6.2005 6:53pm
John Thacker (mail):
Hopefully should finally fix it.
10.6.2005 6:54pm
John Thacker (mail):
"Public use" clarifies that what they're talking about is takings by the government.

It only clarifies it if takings by the government are synonymous with takings for public use. Otherwise, why not just say "by the government" instead of "for public use?" Therefore, I have to assume that you're arguing that takings by the government are, by definition or assumption, takings for public use. Now, I suppose you could argue that by definition any taking by the government automatically qualifies as public use, since the people through their government approved of it. I don't think I could join you in that.
10.6.2005 7:02pm
David M. Nieporent (www):
But as Chapman points out, the Constitution does not consist of only this one clause. If George Bush took my property and gave it to Dick Cheney for his private use, I'd say that violates the due process clause. It probably violates other portions of the Constitution as well. There's simply no need to twist the just compensation clause around into something that it clearly is not.

So the words "due process," which facially provide procedural guarantees only, somehow prevent the government from taking from you and giving to Cheney. Whereas the clause that *actually deals with takings,* and which clearly *do* require public use, doesn't have anything to do with the issue.

"Nor shall private property be taken without just compensation." But that's totally vague.

Apparently you've mistaken textualism for What-would-an-entity-that-couldn't-pass-a-Turing-Test-
think-it-means? There is nothing "vague" about that. Since the Constitution applies to the government, it obviously has nothing to do with you taking things from Walmart; therefore the only contextually sane interpretation is that this statement means what you think the actual Takings clause means.

By your logic -- and by logic I mean blind reading of the language with no context -- the actual Takings clause leaves the government free to take private property for private use without just compensation. Now, as I noted above, you can't shoehorn that into the due process clause. But if you could, that would render the entire Takings clause superfluous, as there's no reason to distinguish between public and private takings for due process purposes.

As for the Takings clause not having a public use requirement, not a single justice agreed with that. There was a dispute about what could be described as "public use," to be sure -- but nobody thought that public use wasn't a requirement. That's why the liberals were so desperate to expand the definition of "public use" to mean "public purpose."


A greater restriction includes a lesser one, logically. Try your analogy the other way around: if your father said, "Don't take my car to school without paying for the gas," and you took the car joyriding and didn't pay him, do you think he'd say, "Oh, I didn't specify what would happen in that case?" Or do you think he'd smack you on the head for playing at elementary school semantics? ("You're grounded! I told you not to eat a cookie before dinner!" "I didn't eat a cookie before dinner; I ate two cookies before dinner.")
10.6.2005 7:13pm
erp (mail):
P_D Are you kidding? Your proof that Pfizer was involved in Kelo is gossip about who was married to whom on the board, and how does "Pfizer wanted a nice place to operate" translate into their confiscating private property?
10.6.2005 7:27pm
Justin (mail):
David, you're making up context. You're trying to find original intent, indeed, any intent, in a situation that the founders never considered in the first place. The point of the 5th amendment was to deal with a specific phenomena, which involved the government taking things for its own private use. The government was not considering taking things for the use of others, and thus the 5th amendment speaks NOTHING about it.

You're simply trying to follow Congress's logic to where it might have led had it thought about it. The reading of the majority in Kelo, which requires compensation, is certainly MORE PLAUSIBLE a reading than yours. However, neither of them are originalist (or textualist) interpretations, because the person you are criticizing, without any doubt, has the correct originalist and textualist interpretation down pat. The 5th Amendment simply does not APPLY to takings not for public use.
10.6.2005 7:58pm
Public_Defender:

P_D Are you kidding? Your proof that Pfizer was involved in Kelo is gossip about who was married to whom on the board, and how does "Pfizer wanted a nice place to operate" translate into their confiscating private property?

That's not what I said. I said you were wrong to say that "Pfizer is not involved in Kelo at all." (Emphasis mine)

I also said that DC Lawyer was wrong to say that Pfizer had "NOTHING to do with the case." (Emphasis his)

It is wrong to say that Pfizer took the land. But given the role of Pfizer executives in the NLDC, it's equally wrong to say that Pfizer has "NOTHING" to do with the (attempted) confiscations or that Pfizer is not involved "at all."
10.6.2005 10:51pm
Public_Defender:
Erp and DC Lawyer, you are 100%, dead wrong to say that Pfizer has "NOTHING" "at all" to do with the NLDC's confiscations. According to the NLDC's website:
Through the development of the Global Research and Development Facility, Pfizer Inc, is playing a leading role in the revitalization of New London. The company also provides extraordinary leadership in helping to guide the New London Development Corporation.

With a corporate culture that emphasizes participation and contribution in the community, Pfizer management participates on the NLDC Board of Directors and NLDC committees. Employees also take on active roles in the corporation's planning and community development activities.

Source: http://www.nldc.org/aboutus/nldc_org_par.htm#pfizer

Your statements about Pfizer are only correct if you assume that Pfizer employees and management on the NLDC have abstained from all matters involving the confiscations. That just isn't plausible.
10.7.2005 9:50am
Marcus1:
>Otherwise, to follow your logic, if they merely wanting to say "takings by the government," and if "takings by the government" were allowed to encompass things other than for public use, then they would have said "Nor shall private property by taken by the government except with just compensation."<

I believe that is exactly what they meant by "for public use": by the government. Then why didn't they say it, you ask? Simple choice of language, I guess. "By the government" isn't as pretty.

The thing is, it simply makes no sense that "public use" was meant to be any narrower than "by the government," because the effect would only be to limit the scope of the clause. The result is exactly the absurdity that a government taking for "private use" would then not be subject to the just compensation requirement. That's crazy, I agree, but it's not a reason to completely rewrite the clause. The obvious answer, rather, is that the framers would not have allowed for this theoretical possibility. If the government takes it, it's for a public use.

But the Court, instead, supported by conservatives, has done something entirely counter-intuitive. They have created the theoretical possibility, used it to discredit the plain language of the clause, and then expanded it into a monster.

They have created this idea of a public taking for a private use, and then they have said that this must be unconstitutional despite the fact that the constitution doesn't address it. THEN, they have tried to turn it into something extraordinarily broad -- something that would potentially prevent the government from creating a public park with a private lemonade stand. It's extraordinary judicial activism, and though I don't have space to discuss it, there is no history to support it either.

>As a quick clarification, then do you believe that takings by the government for private use (and thus possibly some eminent domain actions) violate the due process clause?<

It's a much more natural answer.

>Or do you believe that takings "for public use" require "just compensation," but that some takings for private use require no compensation, so long as standards of due process are met?<

If the government takes it, I think Constitutionally it's a public use, and just compensation is due. If the taking is just an effort to harm Souter or to benefit cronies, then I think it violates the due process clause.
10.7.2005 11:15am
Marcus1:
David,

>So the words "due process," which facially provide procedural guarantees only, somehow prevent the government from taking from you and giving to Cheney. Whereas the clause that *actually deals with takings,* and which clearly *do* require public use, doesn't have anything to do with the issue.<

Yes, if George Bush and Dick Cheney get together and decide to use the government to steal my land, that violates my due process rights. If they conspire with Wal-Mart or Halliburton to do it, that violates my due process rights.

The problem is that the clause that actually deals with takings doesn't do what you want it to do. It doesn't prevent these scenarios. It merely provides for just compensation.

As to the car example, it was my son. Maybe he can go grocery shopping without paying me just compensation, maybe he can't. Clearly different assumptions will apply, but that's exactly the point: whether he has to pay to go grocery shopping will depend on external assumptions about what he's allowed to do, not on what I said about joyriding in the car.

So what if he comes back from a drive and says he wasn't joy riding, but rather just drove to the store? I'd probably say, "nice try, pay me the compensation." Indeed, if anything, I would claim that any driving my son does is "joy riding." I certainly wouldn't say "What?? You weren't allowed to go to the store -- did you not hear my joy riding requirement?"
10.7.2005 11:44am
DC Lawyer (mail):
Public Defender -- I said Pfizer had nothing to do with the case and I stand by that. Pfizer was not a party, intervenor or amicus, and did not stand to receive any of the land in question.

It strikes me as quite logical that representatives of adjacent landowners, particularly one whose private project helped spark interest in waterfront redevelopment, would serve on the board of a redevelopment corporation. They were probably asked to join the board. You forget that the NLDC is operating with the explicit authority of the legislature and that the votes which took place to create the NLDC may have had Pfizer's support (why wouldn't they?) but again did not specifically involve or benefit Pfizer.

If I owned a hotel on the other side of this property, I'd be interested too. I'd probably be on the board of NLDC and support the development. So what?

My point is simple and unassailable -- Kelo's land was not taken to give to Pfizer. Unfortunately that's not the impression that all these Pfizer references conveys (I think intentionally). Pfizer is just another member of the public that benefits (as do most of the citizens of the city) from New London's revitalized waterfront.
10.7.2005 12:38pm
Public_Defender:
This statement is true:
My point is simple and unassailable -- Kelo's land was not taken to give to Pfizer.

This statement is also true:
Pfizer was not a party, intervenor or amicus, and did not stand to receive any of the land in question.

But this statement is true only if you have an unreasonably narrow definition of "the case":
Pfizer had nothing to do with the case. . . .
If Pfizer had a vote on the NLDC and the NLDC was a party, then I think it is, at best, an exaggeration to say that Pfizer had "NOTHING" to do with the case, especially when you capitalize "NOTHING" for emphasis.

You would never say that a board member of a corporation had "NOTHING" to do with the corporation's litigation. Why should it be any different for Pfizer and the NLDC?

It would be cowardly and dishonest of Pfizer to deny any responsibility for the Kelo confiscations.
10.7.2005 12:49pm
John T (mail):
Yes, if George Bush and Dick Cheney get together and decide to use the government to steal my land, that violates my due process rights. If they conspire with Wal-Mart or Halliburton to do it, that violates my due process rights.

How is this position of yours any less judicial activism? Exactly where in the Due Process Clause do you get this? It seems to me that the government could set up a fair procedure for taking property away from people in order to give it to whomever would make more profitable use and pay more taxes on it, and you couldn't disagree at all. It doesn't have to be a conspiracy or corruption-- a simple unbiased process would often result in taking land away from the poor in order to give it to the wealthy or large corporations, who would develop it more.

Are you arguing perhaps on substantive Due Process grounds? Seems like a little bit of the pot calling the kettle black, then, to go throwing around charges of judicial activism and claims of rights invented that aren't in the text.
10.7.2005 1:24pm
John T (mail):
The obvious answer, rather, is that the framers would not have allowed for this theoretical possibility. If the government takes it, it's for a public use.

I disagree. The obvious answer is that the framers would not have allowed takings for other than public use, as evidenced in their private writings. The clause discusses takings for public use because those are the only kinds which were contemplated as being possible. The others were obviously violations of private property rights.

On a related note, talking about another analogy:
Indeed, if anything, I would claim that any driving my son does is "joy riding."

What if he takes your car and sells it? That's certainly not joyriding, now is it, and you can't argue so. But you didn't specifically rule that out or say anything about it, so we can't assume that you meant to forbid him from selling it.

Back in the real world, the assumption is that the car is your property and your rights over it are absolute. You do not need to individually forbid each possible action, especially those that are obviously beyond the pale. Joyriding is specifically forbidden precisely because it's something that is both likely to happen and likely to be a grey area. ("I'm not going to ruin the car just by riding around a little.") It's specifically mentioned because it is actually possible that there's uncertainty about whether it is allowed. The one statement about joyriding does not exist in the total absence of other fundamental assumptions about property rights-- and neither does the statement about eminent domain.
10.7.2005 1:36pm
John T (mail):
You're trying to find original intent, indeed, any intent, in a situation that the founders never considered in the first place. The point of the 5th amendment was to deal with a specific phenomena, which involved the government taking things for its own private use. The government was not considering taking things for the use of others, and thus the 5th amendment speaks NOTHING about it.

Not considered because not allowed. If it were considered the same, then there would be no need to restrict the clause to "for public use." But it was restricted, so clearly the case was different. There are two plausible reasons why such an obviously related issue would be not considered or discussed:
1) It could be somehow less dangerous than taking for public use, and thus obviously not require just compensation, or
2) It could be more dangerous and extreme and action than taking for public use, and thus obviously not be permissible.

Option 1 is absurd based on pretty much any understanding of private property rights and legal traditions in this country. Therefore, Option 2.

The argument that "as long as the government takes it, it's public use" seems to me like it would equally justify "as long as the government has a well-defined process for taking it that was followed, that's due process." So I'm not sure how one justifies taking property to give to a private actor as permissible under the 5th Amendment but not under the Due Process Clause.
10.7.2005 1:43pm
John T (mail):
Maybe he can go grocery shopping without paying me just compensation, maybe he can't. Clearly different assumptions will apply, but that's exactly the point: whether he has to pay to go grocery shopping will depend on external assumptions about what he's allowed to do, not on what I said about joyriding in the car.

Yes, but you only mentioned joyriding for a reason-- other things that were not mentioned are presumably either obviously allowed and more permissible than joyriding, obivously the same thing joyriding, or obviously disallowed and less permissible than joyriding. True, I don't know all your assumptions, but making only the one statement and limiting it in such a way indicates that you are making assumption.

The assumptions in our legal tradition and in the Constitution make it clear that taking for private benefit is not obviously allowed and more permissible without compensation compared to taking for public use. Therefore, we are left with two choices-- either taking and giving to a private entity is substantively the same as taking for public use, because of the public benefit, or it is obviously distinct and thus was not addressed because it was obviously disallowed.

You're quite correct that it does depend on assumptions. However, you're refusing to address that there are assumptions; the Constitution does not exist in a total vacuum. In this case, since we can all agree that it is absurd that takings for private benefit is somehow more acceptable than for private use, we can only resolve the issue by seeing if they are substantively the same, or somehow worse. (They are clearly related since both involve power of eminent domain.)

Therefore, it does boil down to a Public Use requirement.
10.7.2005 1:50pm
Marcus1:
Me: The obvious answer, rather, is that the framers would not have allowed for this theoretical possibility. If the government takes it, it's for a public use.
John T: I disagree. The obvious answer is that the framers would not have allowed takings for other than public use, as evidenced in their private writings.

Except that the Constitution does not say that. Your entire argument is based on a supposed implication, derived from a supposed absurdity in the literal language. I'm saying, look, the literal language is not absurd, and your assumption doesn't make sense.

You are assuming that the founders would not allow an urban revitalization project. It's a 100% pure assumption. The emindent domain clause, by its language, does not say so. Yet you would use this assumption to strike down validly enacted laws. That is simply not conservative jurisprudence.

I would not make such a bold assumption. Rather, by "for public use," I would interpret the framers to have meant to include any government taking. This avoids any absurdity in result. It avoids adding a broad "public use" requirement to the text which does not exist. Most importantly for conservatives, it avoids having the judiciary create constitutional rights by dramatic inferences and taking decisions away from the elected branches.
10.7.2005 3:19pm
Marcus1:
John T,

>a simple unbiased process would often result in taking land away from the poor in order to give it to the wealthy or large corporations, who would develop it more.<

You sound like such a liberal! Have you no faith in the legislative process? It's like you just realized that legislatures have the power to screw people over....

If the government takes property, the eminent domain clause requires that it pay just compensation. If the government does so, it has not violated that clause.

If a group of citizens get together and hijack the legislature to turn Souter's house into a hotel, that violates due process. Using your language, this would be "biased." If there were no bias or nothing unfair, then maybe it just comes down to governmental discretion. It's scary, I know.

If there's a difference between us, it's that I want to read the due process clause broadly, whereas you want to completely change the language of the eminent domain clause. If there's no difference, then that's fine -- we're both judicial activists. I think that's more distressing for you, though, than it is for me.
10.7.2005 3:38pm
erp (mail):
Pfizer had nothing to do with it means exactly that.

Kelo was decided by five liberal justices who got together and ruled that a city could take an ordinary citizen's private property and give it to developers for their own personal gain.

That's the long and short of it.

As for Pfizer, they've been slimed by the media who have lied, distorted and spun this debacle and blamed it on corporate greed.
10.7.2005 3:40pm
Public_Defender:
Pfizer had nothing to do with it means exactly that.
The NLDC has praised the "leadership" role of Pfizer in the NLDC. The NLDC has said that Pfizer managers play key roles on the NLDC Board and on NLDC committees.

I don't even see how an honest, thoughtful person can say that Pfizer had "nothing" to do with the NLDC's litigation and land confiscations.
10.7.2005 3:49pm
erp (mail):
The important thing here, Public Defender, is that however important a role Pfizer managers had on the various boards or committees, the case was decided by the Supreme Court of the United States of America, not the NLDC.
10.7.2005 8:07pm
Public_Defender:
The important thing here, Public Defender, is that however important a role Pfizer managers had on the various boards or committees, the case was decided by the Supreme Court of the United States of America, not the NLDC.
Now you're reduced to pointing out the name of the court that decided the case (and I concede that the U.S. Supreme Court did, in fact, decide the Kelo case).

But this is radically different than saying that Pfizer had "NOTHING" "at all" to do with the litigation.
10.8.2005 7:24am
erp (mail):
P_D give it a rest. This case was brought to the Supreme Court by the property owners, not Pfizer and supporting urban renewal is a far cry from tossing people out of their homes.

The media have distorted this decision in such a way as to blame the big, bad corporation when it is the leftwing justices who are solely and completely responsible for this bizarre ruling.
10.8.2005 10:15am
Public_Defender:
OK. OK. OK. You've now established that five justices voted for the NLDC in the Kelo case. But, back to the point, do you now agree you were wrong when you said, "Pfizer is not involved in Kelo at all"?
10.8.2005 4:08pm
David M. Nieporent (www):


Yes, if George Bush and Dick Cheney get together and decide to use the government to steal my land, that violates my due process rights. If they conspire with Wal-Mart or Halliburton to do it, that violates my due process rights.

You know what else violates my due process rights? If my wife doesn't get me good presents for my birthday. Or if there's a traffic jam during my morning commute because someone's car stalled. Or if it rains when I want to go to a baseball game.

I mean, as long as you feel free to redefine the words "due process" to mean "things Marcus don't like," why not?

Sheesh. It takes a lot of chutzpah to bring up charges of "judicial activism" for trying to read the fifth amendment to give all the words their meaning -- as opposed to pretending that the words "for public use" are mere surplussage, as your reading does -- and then pretend further that "due process" prohibits government behavior even where there has been due process, merely because you don't like the outcome.

You want to make a narrow textual argument? Make one. But then don't claim "due process" has a substantive component, which is obviously not in the narrow text.

In the alternative, read the words sensibly, such that all the words, including "for public use," have real meaning. If all that "for public use" meant was "by the government," the fifth amendment could just say, "Private property shall not be taken without just compensation." You've presented no argument why those words were included.
10.10.2005 4:06am
David M. Nieporent (www):
And just to respond to DC Lawyer, even granting that "public use 'is coterminous with the regulatory power,'" I don't see how that applies here, since what happened in New London was far beyond the regulatory power.
10.10.2005 4:11am
Marcus1:
David,

Wow, you kind of went over the top here. Acts of God violate due process? No, only the government can violate the Constitution.

"No person shall be deprived of property without due process of law."

What do you think "due process" means there? Anything goes as long as a law is passed? If the decision-making process was transparently corrupt and self-interested, you don't think that could violate "due process"?

You seem to completely read the word "due" out of "due process." Is any process enough, according to you? The word "due" involves a judgment call about what process satisfies the clause. To condemn property, I would say more process is due than something that was transparently self-interested or corrupt. You call that rewriting the clause for my personal desires?

As far as giving meaning to all the words in the eminent domain clause -- as I have suggested, "for public use" essentially means "by a government body." Sure, they could have said, "Nor shall property be taken without just compensation." They specified "private property" and juxtaposed it with "for public use." Giving every word meaning, however, does not mean turning every word into a narrow restriction on government's power.

Now, you may be right that they weren't comfortable leaving "for public use" out altogether, as that might imply that just compensation could justify any corrupt government taking. The thing is, though, that you're not being honest about what you're doing with this theory. You're not using it to "give meaning" to "for public use." You're using it to create an incredibly broad penumbra, completely apart from the text of the clause.

Incredibly, then, you would have the judiciary use this penumbra to strike down valid legislative enactments. And not only do you want a public use requirement penumbra, you want it to be narrow. Despite the fact that the words were not written with the intent of restricting government power, let alone state government power, you would rely on a narrow definition of "public use" to strike down anything that was merely for a "public purpose."

And you still can't see that some judicial finesse was involved in all of this?
10.10.2005 3:45pm
David M. Nieporent (www):
Wow, you kind of went over the top here. Acts of God violate due process?

It was hyperbole -- which, by its nature, is supposed to be over the top. The point is that your definition of "due process" seems entirely untethered to the words.

(Which may be a valid approach -- but I don't see how it can be reconciled with your parsimonious reading of the Takings clause.)

To condemn property, I would say more process is due than something that was transparently self-interested or corrupt. You call that rewriting the clause for my personal desires?

Yes, I do. How can the motives of the legislature be the determining factor in whether the property owner received due process? I say that you agree that such a taking would be distasteful, but because you're desperate to limit the scope of the Takings clause, you're trying to find some other provision to shoehorn that dislike into.

I have no idea why you think that reading the words "public use" to mean "public use" requires a penumbra.

Especially since you admit here that your speculation about the meaning of these words makes no sense: "No, only the government can violate the Constitution." We agree on this point; therefore, it would be totally redundant to suggest that "public use" meant "by the government."

I don't know why you think that the words were not written with the intent of restricting government power.
10.11.2005 12:57am
Marcus1:
>I don't know why you think that the words were not written with the intent of restricting government power.<

Because if that's what they wanted they would have said "Nor shall private property be taken except for public use and with just compensation." Why didn't they say that?

The way they wrote it, "Nor shall private property be taken for public use without just compensation," does not create a public use requirement. It creates a just compensation requirement. It's very basic logic/grammar: what they have there is an "If you do this, you must do that." If you take private property for public use, you must pay just compensation. The only way this clause can be violated is by not paying just compensation. If the taking doesn't meet the initial conditions, then the clause simply doesn't apply. It's extraordinarily basic logic and grammar, which only lawyers have been able to twist around.

The language most certainly does not flatly FORBID any kind of taking, as you would have it do with a public use requirement. The most it deigns to do is require just compensation. That is the requirement. If you get past your assumption that there must be a public use requirement, you will see this.

Nevertheless, your argument is that this result would be absurd, because it would allow private takings without just compensation. Therefore you make the assumption that "private" takings are not allowed... at all! This is a penumbra. The eminent domain clause does not say this. It prohibits nothing by its language, except uncompensated takings.

And moreover, your reading is completely unnecessary. To stay true to the language, you need only construe "public use" to include any taking by a government body. This has to have been what they meant, as it avoids the whole absurdity of free private takings. The worst you can say about this is that it renders "public use" superfluous. I don't think that's entirely true. The problem, though, is that you're using the "superfluous" argument to turn a phrase into something that it couldn't possibly mean.

I'd ask you, just for fun, to read through the entire fifth amendment, as if you'd never read it before. When you get through the end, ask yourself what it was doing, and whether there is really a "public use" requirement there. I don't mean to condescend, but it's just so obvious when you read the thing that this whole public use requirement was made up!
10.11.2005 1:23pm
Public_Defender:
Erp and DC Lawyer, the local New London paper did a FOIA request, and it turns out Pfizer was lying when it said it was not involved with the confiscation of homes. You bought into Pfizer's lies (I'm not accusing you of dishonesty.)

According to the October 16, 2005 article in The Day, "in a series of recent interviews, several former high-ranking state officials confirmed what opponents of the project have long insisted and what the company continues to deny: The state's agreement to replace the existing neighborhood was a condition of Pfizer's move here."
10.18.2005 6:20am