The Framers of the Constitution v. the Supreme Court
crackmonkeyjr offers a challenge to my framing of the Brushback, arguing that the Kelo v. New London decision “did little more than uphold Hawaii Housing Authority v. Midkiff. The ‘public use’ requirement on eminent domain has pretty much always been liberally construed.” So I did a bit of shade-tree legal research.
From what I’m finding, it’s probably fair to argue that Kelo is an extension of Midkiff – both address the transfer of a public taking to a private entity. But it looks like this decision significantly broadens the discretion of the government entity and will certainly embolden localities when it comes to their dealings with wealthy investment interests – precisely as O’Connor says in her dissent.
But Constitutional Chatter sees it as being a lot more than this:
What is happening in Kelo and in multiple other cases across the country is the anthesis of Midkiff. In Midkiff, the Justices approved the use of eminent domain to place the land into the hands of many due to Hawaii’s housing crisis. Presumably the public benefitted from that. But from Midkiff has grown Kelo and other cases where government takes from the little person without resources to give to large businesses who could pay fair maket value or place their facilities elsewhere. If any purported economic benefit is to be received, it is a trickle down theory, especially with deals such as $1 a year lease. If the government can take private property for any use, then what is the meaning of the limitation of public use?
(There’s also some relevant discussion here.)
The bottom line for the strict constructionist in me is this. Whether this is a brand new affront to ownership rights or merely another step down the slippery slope is probably beside the point. The basic fact is that this ruling is appallingly out of step with what the framers clearly intended when they penned the 5th Amendment. I understand the role of the Court in intepreting the law when it’s not black and white, but it is not their job to “interpret” that black is white. Imagine the landed gentry who wrote the Bill of Rights leaving to a local legislature the right to condemn the back 40 so the mayor’s brother-in-law could build an office park for the “public’s” benefit.
That whirring sound you hear is Jefferson spinning in his grave.
lullaby pit 
This is what bothers me most about Shrub: He seems to think, “strict constructionist” means “interprets the Constitution in a right-wing way.” Whereas I was taught that “strict constructionist” means NO INTERPRETING OF THE CONSTITUTION WHATSOEVER.
That’s what frightens me most. We no longer have anyone who actually reads the farging Constitution. Instead, we have judges who “interpret” it by twisting the Constitution to support whatever their view is. Kinda like they do with the Bible.
A professor of mine likes to point out that takings/land regulation issues are a place full of selfish, mean liberals, and bleeding-heart conservatives. It is that rare area in our capitalist society where the big, powerful mean guy is a big-government liberal and the poor, helpless underdog is an anti-government conservative.
He had an ingenious solution to the problem: Let people decide what is “just compensation” themselves. You pick the value of your home for emminent domain purposes — and then you pay property tax on THAT value. So if you wouldn’t want the government taking your home for a development project for less than, say, $500,000 (even though the average price of a home like yours is, say, $250,000) you can ensure that will be the case by paying property taxes on $500,000 in property value.
So what about people who set their property values at $1 to avoid property tax? Well, the government would take them up on their offer, and buy the property, of course, then sell it for a profit.
Anyway, the one difficulty is that it’s harder for poor people to pay the higher taxes necessary to protect their land with certainty. But poor people always have it harder, so that’s nothing new.
Damn. That’s like, almost pure evil.
But wait – I was thinking about this solution of your prof’s, and it seems like it opens the door to a different kind of abuse.
Sure, the property owner can set the tax level. Pay taxes on half what the property is worth, for instance. And if the gummit wants to take the land they have to pay whatever I’ve been paying taxes on. Interesting idea. Except that while I decide what level to pay taxes on, setting the taxation level is a governmental function. So the town decides they want to take my land. But I’m paying taxes on $200K, which means they’d have to pay $200K and it’s not worth that much. Fine – so they simply jack the property tax rate on me so that it becomes to prohibitive for me to pay at that higher, discouraging rate.
So tghey manipulate the economic structure to herd me back into the range they want me in, defeating the point of your professor’s idea, right?
You’re right, local governments could hike tax rates to force property owners into giving up their land. That level of corruption is pretty much only addressible by voting the bastards out (or by a suit for a due process violation — something that is certainly available even in cases of ordinary emminent domain if the corruption is provable).
It’ll help property owners that property tax, like any tax, can’t be levied on particular people — if they raise taxe rates on you, they have to raise them on your neighbors, too. So you’ll have plenty of company when you complain that the rates are unfair.
As a side note, as of yesterday, there’s a developer attempting to get Justice Souter’s home condemned for a development project that, supposedly, will generate much more revenue for the community that Souter’s house. Poetic justice, for sure 🙂
http://www.freestarmedia.com/hotellostliberty2.html
You’re right, local governments could hike tax rates to force property owners into giving up their land. That level of corruption is pretty much only addressible by voting the bastards out (or by a suit for a due process violation — something that is certainly available even in cases of ordinary emminent domain if the corruption is provable).
It’ll help property owners that property tax, like any tax, can’t be levied on particular people — if they raise taxe rates on you, they have to raise them on your neighbors, too. So you’ll have plenty of company when you complain that the rates are unfair.
As a side note, as of yesterday, there’s a developer attempting to get Justice Souter’s home condemned for a development project that, supposedly, will generate much more revenue for the community that Souter’s house. Poetic justice, for sure 🙂
http://www.freestarmedia.com/hotellostliberty2.html
That would be the most entertaining case of poetic juctice in recent judicial history.
That would be the most entertaining case of poetic juctice in recent judicial history.