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Thursday, June 23, 2005

Kelo decision - expletives deleted

My reaction to the U.S. Supreme Court's Kelo decision could be summed up as WHAT THE *^&^)()*)&)*???!!!??? (UPDATE: For a more considered approach, though still preliminary and minimally informed, please scroll down a bit.)

To pretend to be fair, I haven't read any of the opinions. I've just seen reports, short excerpts, and blog entries. But c'maahhhn. A city government can decide, or pretend to believe, that it's in the public interest to make you sell your home for a privately run housing development (or is that exempted?) or shopping center or office building, because that'll generate tax revenue, and that'll be good for the city, because of all the OTHER great decisions the city government will eventually make about how to spend it....

Is the overall theme of this term the intention to create despair among libertarians, advocates of small government, and others who have some dim memory of how this country came to exist in the first place?...

I won't have much time to read the opinions over the next couple of days -- so if by any chance there is something in them to complicate or blunt my righteous indignation, I won't have to deal with it just yet.

UPDATE: As predicted, I haven't (the next day) read the opinions yet, but have read a bit more about them, and thought a bit more calmly. I can see that making the outcome revolve purely around technical public-vs-private ownership issues might not be a sound approach. While I'd listen to arguments that eminent domain should not have been allowed for the building of privately owned railroads to make cross-continental travel much easier, I doubt I'd end up accepting such arguments. However, I do not see this as an adequate reason to throw up collective judicial hands and simply defer to local governments. I'm not a great fan of elaborate judicially crafted tests on constitutional issues, but they're often the only alternative to a simple and wrong solution. My preliminary feeling is that we need such a test for claimed "public use" that goes beyond the obvious categories like major transportation, utilities, or governmental buildings. (Query whether all proposed governmental buildings should get an automatic pass....) Here's a thought -- perhaps a referendum, or at least some sort of thorough public comment procedure, should be a prerequisite for approval of a taking for a proposed "public use" that is in fact private development. (The electoral alternative of "throw the rascals out" doesn't do much good years after the house has been razed.) The input could be as major as a referendum, or some sort of thorough public-comment procedure with a minimum absolute number of discrete positive responses as a prerequisite for eminent domain.

1 comment:

Paul Hager said...

In my update/rewrite of the U.S. Constitution, aside from making public use more explicit, I'm thinking of changing "just compensation" to, say, three times the fair market value. Taxpayers might be more likely to balk at projects that start out expensive.

It really shouldn't be necessary to redefine "public use" though. In the original meaning, it was understood that public use precluded a transfer from "A to B" in the private sector. We got here by incrementalism and the mortmain of stare decisis. It appears that Justice Thomas is as close as there is to an originalist on the Court.