Assault on Private Property Rights

Off Topic Politics & World Issues
81

[quote]JD430 wrote:
When I heard this ruling the other day, I stopped in my tracks. This is not an exaggeration. I stopped what I was doing and sat there wondering what has happened to our country. [/quote]

Big Business/Government… it’s all part of the same thing – the corpra-tocracy that John Perkins talks about in “Confessions of an Economic Hitman.”

The division between the two is an illusion. Businesses pour money into political pockets, then when their careers are over, these politicians end up on the boards of the same corps.

What happened to our country?

We have been so busy debating non-issues like Terry Schaivo, Gay Marriage and Flag Burning that we have failed to notice the erosion of individual rights. [b]In fact, I would venture to say that is the only real purpose of these issues. To heat us up emotionally and distract us.[/b]

The bottom line is that we are all basically becoming a colony of America. More and more, we are nothing to our government and business leaders but sources of income/taxes. If more money/taxes can be made from someone else, our rights become meaningless.

We are beginning to view our own citizens with the same profit-motivated “vision” that we’ve viewed the third world with for generations. The real genius of the corpratocracy is not that they see us this way, but when they can cause us to see each other the same way.

Maybe this will wake both liberals and conservatives up to what the greedy fuckers on both sides of the aisle are doing.

82

[quote]JeffR wrote:
I am NOT saying “I told you so.”

I AM encouraging better understanding.

JeffR
[/quote]

JeffR,

I don’t know who you think I am. I am a registered Republican. I have never advocated socialism.

83

i don’t under stand how this is a liberal decesion. fuckin neo-cons

84

[quote]futuredave wrote:
JD430 wrote:
When I heard this ruling the other day, I stopped in my tracks. This is not an exaggeration. I stopped what I was doing and sat there wondering what has happened to our country.

Big Business/Government… it’s all part of the same thing – the corpra-tocracy that John Perkins talks about in “Confessions of an Economic Hitman.”

The division between the two is an illusion. Businesses pour money into political pockets, then when their careers are over, these politicians end up on the boards of the same corps.

What happened to our country?

We have been so busy debating non-issues like Terry Schaivo, Gay Marriage and Flag Burning that we have failed to notice the erosion of individual rights. [b]In fact, I would venture to say that is the only real purpose of these issues. To heat us up emotionally and distract us.[/b]

The bottom line is that we are all basically becoming a colony of America. More and more, we are nothing to our government and business leaders but sources of income/taxes. If more money/taxes can be made from someone else, our rights become meaningless.

We are beginning to view our own citizens with the same profit-motivated “vision” that we’ve viewed the third world with for generations. The real genius of the corpratocracy is not that they see us this way, but when they can cause us to see each other the same way.

Maybe this will wake both liberals and conservatives up to what the greedy fuckers on both sides of the aisle are doing.[/quote]

Interesting, though I’m not sure how your analysis applies to Federal judges, who are a large part of the problem.

85

[quote]BigMike wrote:
i don’t under stand how this is a liberal decesion. fuckin neo-cons [/quote]

Did you happen to see the justices who voted in the majority? Four liberals and Kennedy, a squish.

Scalia, Thomas, Rehnquist and O’Connor were the dissenters.

ADDENDUM: Here’s a nice analysis from a WSJ editorial analyzing just which USSC justices, judging from the results of their recent decisions, are prone to using the law to rob the little guy for the benefit of government and big corporations:

Kennedy’s Vast Domain
The Supreme Court’s reverse Robin Hoods.

Friday, June 24, 2005 12:01 a.m. EDT

The Supreme Court’s “liberal” wing has a reputation in some circles as a guardian of the little guy and a protector of civil liberties. That deserves reconsideration in light of yesterday’s decision in Kelo v. City of New London. The Court’s four liberals (Justices Stevens, Breyer, Souter and Ginsburg) combined with the protean Anthony Kennedy to rule that local governments have more or less unlimited authority to seize homes and businesses.

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.

That protection was immensely diminished by yesterday’s 5-4 decision, which effectively erased the requirement that eminent domain be invoked for “public use.” The Court said that the city of New London, Connecticut, was justified in evicting a group of plaintiffs led by homeowner Susette Kelo from their properties to make way for private development including a hotel and a Pfizer Corp. office. (Yes, the pharmaceutical Pfizer.) The properties to be seized and destroyed include Victorian homes and small businesses that have been in families for generations

“The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue,” Justice John Paul Stevens wrote for the majority. Justice Kennedy wrote in concurrence that this could be considered public use because the development plan was “comprehensive” and “meant to address a serious city-wide depression.” In other words, local governments can do what they want as long as they can plausibly argue that any kind of public interest will be served.

In his clarifying dissent, Justice Clarence Thomas exposes this logic for the government land grab that it is. He accuses the majority of replacing the Fifth Amendment’s “Public Use Clause” with a very different “public purpose” test: “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’”

And in a separate dissent, Justice Sandra Day O’Connor suggested that the use of this power in a reverse Robin Hood fashion–take from the poor, give to the rich–would become the norm, not the exception: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

That prospect helps explain the unusual coalition supporting the property owners in the case, ranging from the libertarian Institute for Justice (the lead lawyers) to the NAACP, AARP and the late Martin Luther King’s Southern Christian Leadership Conference. The latter three groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly. Justice Thomas’s opinion cites a wealth of data to that effect.

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.

So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it’s now ruled that there are effectively no limits on the predations of local governments against private property.

These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles. If President Bush is truly the “strict constructionist” he professes to be, he will take note of the need to check this disturbing trend should he be presented with a High Court vacancy.

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Epstein is one of the fathers of the law-and-economics school of analysis, and is among the top scholars in the nation on property rights, both Constitutional and otherwise.

Supreme Folly

By RICHARD A. EPSTEIN
June 27, 2005

Last week’s regrettable 5-4 decision in Kelo v. City of New London marks a new low point in the Supreme Court’s takings jurisprudence. The Constitution allows private property to be taken for public use only on payment of just compensation. But what counts as public use? In Kelo, Justice John Paul Stevens held that courts, especially federal courts, should be hugely deferential to a government decision, done after comprehensive hearings, to displace one private property owner in favor of a second private party in the name of overall economic development.

To understand why Kelo is truly horrible, it is necessary to look both at Kelo and the constitutional logic of public use requirement. On the former, the declining economic fortunes of New London spurred the city elders to embark on a general urban development plan, underwritten by $73 million in state money devoted to general planning, physical infrastructure and environmental cleanup. The plan lacked only one ingredient – some real live developer prepared to risk his own capital to build any office or hotel on part of the 90 or so acres the City already had.

Not content with its overheated vision, New London’s plan envisioned taking down about 15 old homes overlooking Long Island Sound, to be used for some unidentified form of “park support.” Fancy new private homes were not listed on the plan. None of the endless frustration and delays in implementing its grand plan were attributable to the decision of some landowners to fight New London. Quite simply, the slow rate of development made obsolete some of the original projects, such as a luxury hotel to support a new nearby Pfizer facility. Pfizer could not wait 10 years to house its visiting dignitaries. One obvious compromise position, therefore, should have appealed even to the five member majority on the Supreme Court: to force the City to postpone the condemnation of these private homes until the City revealed its hand.

No such luck with Justice Stevens, for in his view New London had made its case when it asserted, without evidence, that the new projects would both increase tax revenues and create new jobs. It hardly mattered that its projections had been pulled out of thin air and were already hopelessly out of date when the case reached the Supreme Court. All that need be shown to Justice Stevens was procedural regularity and some claim that the proposed project served some “public benefit.”

Astute readers will quickly note that the phrase “public benefit” is far broader than the constitutional words “public use.” That last phrase clearly covers only two situations. The first arises when land is taken to build government facilities, such as forts, or to construct infrastructure, such as highways, open to all. The second covers those cases where property is taken by, or conveyed to, private parties who are duty bound to keep it open to all users. Private railroads and private grist mills, both of which are subject to the common carrier obligation of universal service, are two obvious examples. Note too that once a given use is properly identified as public, it does not matter for constitutional purposes whether the project is wise or is as foolish as New London’s redevelopment program. The constitutional inquiry is over once it is proved that the project falls into these categories. Factually, the standard of review hardly matters, for it takes little genius to prove that a given structure is a fort or a highway.

There are, however, good reasons why the public use language has long been extended to cover some cases of takings for private purposes with indirect public benefits. One recurrent problem of social coordination arises when one party is in a position to blockade the productive ventures of another. To take a real historical example, assume that the owner of a mine (who has no choice on where to dig) can only get his ore to market by ferrying it over scrub lands owned by another individual. That second landowner can demand a huge chunk of the mining profits for his trivial contribution to the overall venture. For over 100 years, the Supreme Court has allowed the state to condemn the obstructing property for the mine owner upon payment of just compensation, here measured by the trivial losses sustained by the obstructing landowner. The net gains from blocking the holdout are huge.

The great intellectual blunder of the public use law over the past 50 or so years is that it has wrenched the public benefit language out of this narrow holdout context. In the mid-1950s, the Supreme Court held that takings were for public use when they were intended to relieve various forms of urban “blight” – a slippery term with no clear constitutional pedigree. Thirty years later, the Court went a step further by allowing Hawaii to force landlords to sell their interests to sitting tenants, as a means to counteracting ostensible “oligopolistic” market conditions. Now any “conceivable” indirect social benefit would do, without regard to the attendant costs.

Given this past legacy, Justice Stevens found it easy to take New London at its word. Any comprehensive public project will produce some benefit for someone, so that – as Justices O’Connor and Thomas stressed in dissent – his test always allows the legislature to gin up some rationale for taking public property for just compensation (which alas falls far short of making the individual landowner whole: legal, appraisal and moving costs, for example, are systematically ignored). But the slightest bit of reflection should have shown just how the new public use cases have migrated from the old mining cases, or even under the Hawaii statute, which did not displace sitting tenants.

In the present case, Susette Kelo and her fellow plaintiffs have not tried to extract some unconscionable gain out of some sensible business venture. They have no desire to sell their homes at all. At the same time their subjective losses have been enormous. It was a perfectly sensible line for the Court to say when subjective values are high, and holdout problems are nonexistent, the requisite public use is not present.

The Court could only arrive at its shameful Kelo ruling by refusing to look closely at past precedent and constitutional logic. Courts that refuse to see no evil and hear no evil are blind to the endemic risk of factional politics at all levels of government. And being blind, this bare Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all.

Mr. Epstein is a professor of law at the University of Chicago and a senior fellow of the Hoover Institution.

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Cities are already beginning to act on the basis of this decision:

Freeport moves to seize 3 properties
Court’s decision empowers the city to acquire the site for a new marina
By THAYER EVANS
Chronicle Correspondent

FREEPORT - With Thursday’s Supreme Court decision, Freeport officials instructed attorneys to begin preparing legal documents to seize three pieces of waterfront property along the Old Brazos River from two seafood companies for construction of an $8 million private boat marina.

The court, in a 5-4 decision, ruled that cities may bulldoze people’s homes or businesses to make way for shopping malls or other private development. The decision gives local governments broad power to seize private property to generate tax revenue.

“This is the last little piece of the puzzle to put the project together,” Freeport Mayor Jim Phillips said of the project designed to inject new life in the Brazoria County city’s depressed downtown area.

Over the years, Freeport’s lack of commercial and retail businesses has meant many of its 13,500 residents travel to neighboring Lake Jackson, which started as a planned community in 1943, to spend money. But the city is hopeful the marina will spawn new economic growth.

“This will be the engine that will drive redevelopment in the city,” City Manager Ron Bottoms said.

Lee Cameron, director of the city’s Economic Development Corp., said the marina is expected to attract $60 million worth of hotels, restaurants and retail establishments to the city’s downtown area and create 150 to 250 jobs. He said three hotels, two of which have “high interest,” have contacted the city about building near the marina.

“It’s all dependent on the marina,” Cameron said. “Without the marina, (the hotels) aren’t interested. With the marina, (the hotels) think it’s a home run.”

Since September 2003, the city has been locked in a legal battle to acquire a 300-by-60-foot tract of land along the Old Brazos River near the Pine Street bridge as well as a 200-foot tract and 100-foot tract along the river through eminent domain from Western Seafood Co. and Trico Seafood Co.

Eminent domain is the right of a government to take private property for public use upon payment of the fair market value.

The tracts of land would be used for a planned 800- to 900-slip marina to be built by Freeport Marina, a group that that includes Dallas developer Hiram Walker Royall. He would buy the property from the city and receive a $6 million loan from the city to develop the project.

Freeport Marina would then invest $1 million in the project and contribute a 1,100-foot tract of land, valued at $750,000, to it before receiving the loan.

Western Seafood spokesman Wright Gore III said the wholesale shrimp company was disappointed with the Supreme Court decision, but believes the ruling does not apply to the city’s eminent domain proceedings.

He said there is a provision in state law that allows residents of a city to a circulate a petition to call a vote on whether the city can take property using eminent domain.

“(This) is far, far from over,” Gore said. “(We) would have liked to have seen a victory on the federal level, but it is by no means a settled issue.”

Gore said Western Seafood’s 30,000-square-foot processing facility, which sits on the 300-by-60-foot tract, would be forced to close if the land were seized.

That facility earns about $40 million annually, and Western Seafood has been in business in Freeport since 1946, he said.

City officials, however, have said the marina will still allow Western Seafood and Trico Seafood, which did not return telephone calls or e-mail Thursday, to operate their facilities.

In August, U.S. District Judge Samuel Kent ruled against a lawsuit filed by Western Seafood seeking to stop the city’s eminent domain proceedings. The seafood company then appealed its case to the 5th U.S. Circuit Court of Appeals in New Orleans, a request that initially was denied.

The appeals court then decided it would take the case, but not rule on it until after the Supreme Court made a ruling on the New London, Conn., case.

Chronicle reporter Richard Stewart contributed to this report.

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[quote]BigMike wrote:
i don’t under stand how this is a liberal decesion. fuckin neo-cons [/quote]

To add onto BB’s response, I’m not sure how this would be a conservative decision (unless you blindly believe conservatives will do anything for big business, which is patently false). As I wrote before, you cannot purely pigeon hole this decision in any one camp, but if you wanted to see how it could be viewed as a liberal decision, it’s not that hard: government knows what’s best for the people (since they probably don’t know what is best for themselves anyway).

Anyway, like I said - this one is not easy to square in any political camp and I am STILL finding it amazing to see such disparate voices on the political forum all in agreement over decision being an awful one. I have yet to run into a person who thinks this is a good thing except for politicians in New London or the media-hound attorney general of CT.

89

[quote]
BigMike wrote:
i don’t under stand how this is a liberal decesion. fuckin neo-cons

Kuz wrote:
To add onto BB’s response, I’m not sure how this would be a conservative decision (unless you blindly believe conservatives will do anything for big business, which is patently false). As I wrote before, you cannot purely pigeon hole this decision in any one camp, but if you wanted to see how it could be viewed as a liberal decision, it’s not that hard: government knows what’s best for the people (since they probably don’t know what is best for themselves anyway).

Anyway, like I said - this one is not easy to square in any political camp and I am STILL finding it amazing to see such disparate voices on the political forum all in agreement over decision being an awful one. I have yet to run into a person who thinks this is a good thing except for politicians in New London or the media-hound attorney general of CT.[/quote]

Don’t forget the New York Times Editorial Board – see the editorial I linked above. Also, it’s not too hard to find big-government liberal academics who agree – but then again, those are the same type of people who comprise the majority on Kelo, so I guess that’s unsurprising.

ADDENDUM:

Here’s Michael Kinsley in The Washington Post giving the classic big-government liberal take – and note how it’s all centered implicitly on the unrestrained ability of the judiciary to read things in to the Constitution that aren’t there - Kinsley evidently thinks (or wants his readers to think) that the text of the Takings Clause has a “public purpose” requirement, rather than a “public use” requirement (see the Epstein article above for why this is a HUGE difference):

And of course, there’s good ol’ Ruth Bader Ginsberg, who explicitly states the same principle (judges rewriting the Constitution) as contemplated by the Constitution (that whole Article V thing… nah… we don’t need to pay attention to that…):

http://www.nationalreview.com/comment/whelan200504260804.asp

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I guess for a lack of eloquence, you could say- Shit flows downhill, but Money flows up.

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Has any one heard how the people of New London were compensated? I am not saying this case is right but I believe if they were properly compensated it would minimize the transgression.

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[quote]pittbulll wrote:
Has any one heard how the people of New London were compensated? I am not saying this case is right but I believe if they were properly compensated it would minimize the transgression.[/quote]

This is war. Money doesn’t solve war. We have a contract with our government, and that contract is the Constitution. When unelected officials nullify or break that contract, we have no reason to assume good faith regarding any other part of it.

93

What, there isn’t a severance clause?

I think the most telling post in this thread was from JD. Imagine, as a cop, that you are instructed to forceably remove lawful residents of property from their home.

Why? Because the city wants their land for purely economic benefit.

As a police officer, will you stand up against this tyranny, or will you obey authority and trample on the rights of your fellow citizens?

Are you going to stop the tank, or drive right over the protestors? It will be an image that will be displayed worldwide… unless of course the government arrests everyone with a video camera for being a terrorist.

94

[quote]BigMike wrote:
i don’t under stand how this is a liberal decesion. fuckin neo-cons [/quote]

wutever u do don’t try to unnerstand y u mite connect “the left” with “socialism”.

My keds aint lernin, fuckin neo-cons!

95

[quote]nephorm wrote:
pittbulll wrote:
Has any one heard how the people of New London were compensated? I am not saying this case is right but I believe if they were properly compensated it would minimize the transgression.

This is war. Money doesn’t solve war. We have a contract with our government, and that contract is the Constitution. When unelected officials nullify or break that contract, we have no reason to assume good faith regarding any other part of it.[/quote]

I do agree with you to a degree. It would be hard to build anything new in a city with out first condemning property. I have known stories of individuals that own property where a freeway is to go and they hold the project for ransom only because they can. I think fair compensation is essential. If there is to be an error it should be on the side of the little person.
You can’t fight City Hall. VOTE!!!

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.

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In California, under Prop 13, where property tax may not be increased unless property changes ownership, wouldn’t this basically make it possible for any lower or middle-income neighborhood to be seized, and new homes built on the sites…for the good of the community through higher tax revenues?

98

[quote]Rebecca wrote:
In California, under Prop 13, where property tax may not be increased unless property changes ownership, wouldn’t this basically make it possible for any lower or middle-income neighborhood to be seized, and new homes built on the sites…for the good of the community through higher tax revenues?[/quote]

Yes.

99

A Republican Senator, John Conryn of Texas, proposes limiting eminent domain:

http://www.volokh.com/archives/archive_2005_06_26-2005_07_02.shtml#1119903026

[Eugene Volokh, June 27, 2005 at 4:10pm] 0 Trackbacks / Possibly More Trackbacks

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain: Sen. Cornyn is introducing a federal bill (“The Protection of Homes, Small Businesses, and Private Property Act of 2005”) that would bar “economic development” takings:

(a) . . . The power of eminent domain shall be available only for public use.

(b) . . . In this Act, the term “public use” shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent domain power by the Federal Government; and (2) all exercises of eminent domain power by State and local government through the use of Federal funds.

As I read this, the bill would only apply when states and local governments use federal funds to pay for the taken property (since that’s the only time the “eminent domain power” is “exercise[d]” “through the use of Federal funds”); it wouldn’t matter whether they use federal funds for the rest of the development project. I suspect that this means the effect on state and local takings will be modest, though perhaps the symbolic impact might be more substantial.

I would think this is rather limited – they could give this a lot more teeth, and expose the death of federalism under the USSC Commerce Clause jurisprudence, by simply defining any takings that are inconsistent with the above as banned according to Congress’ Commerce Clause power. I think there’s a much better argument that such takings, in the aggregate, effect interstate commerce than the growing of marijuana in someone’s backyard…

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[quote]pittbulll wrote:
I have known stories of individuals that own property where a freeway is to go and they hold the project for ransom only because they can. I think fair compensation is essential. If there is to be an error it should be on the side of the little person.
You can’t fight City Hall. VOTE!!!
[/quote]

I should clarify that I am not arguing against eminent domain takings as they have been traditionally understood. That is, I have no problem with the government seizing land for a highway or other “public use” project, as long as certain procedures are followed. I have a very large problem with the government taking private land to give to another private entity.

But our government has never been especially fond of the “just compensation” bit, either… the EPA ran roughshod over that for years by designating privately held land as unbuildable because some special species was living there. Essentially, you could go out, by 10 acres to develop on, spend $20 million, and then have the EPA tell you that you were not allowed to develop on your land. Of course, your property would at that point become worthless. IIRC, the Court held that this was not Constitutionally valid, as the government was essentially taking the land as a park without compensating the owner.