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  • Good Day to be a Politically Connected Developer

    Posted by Shannon Love on June 23rd, 2005 (All posts by )

    The Supreme Court today ruled that encouraging economic development by seizing one private individual’s property and handing it over to a second private individual was a Constitutionally valid interpretation of the 5th Amendment’s takings clause.

    Traditionally, eminent domain meant exclusively the taking of private land for uses that were explicitly public, such as creation of roads, parks, military bases, etc. The seized land became public property. As of today, you only own your home until the State determines that somebody else could put it to better economic use. At any time, based on some consultant’s economic analysis, the State can force you to sell your property to another private individual at a price the State sets.

    This ruling will open up the flood gates for the raping of the property rights of the little people. Large politically connected developers will be able to get the government to seize properties they desire, for bargain basement prices. Politicians eager for campaign donations and tax revenues will gladly cooperate. Heck, developers will be able to use just the threat of seizure by eminent domain to drive down prices.

    Screw flag burning. The Congress needs to offer an amendment to return eminent domain to its original meaning. Our system of land property is the foundation of our economic system. Without secure property rights the economy will collapse. I can say without any hyperbole that this one ruling has the potential to do more long-term damage than any other Supreme Court ruling of the last 100 years. It will destroy property rights, corrupt government and lead to the politicization of virtually every real-estate development.

    I’m writing my state and federal representatives and I encourage you to do the same.

     

    19 Responses to “Good Day to be a Politically Connected Developer”

    1. Sulaiman Says:

      How would writing your representative help overturn this ruling?

      Isn’t there some other kind of constitutional process to undo this damage?

      P.S. Note the four who dissented: O’Connor (“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random.” ), Rehnquist, Scalia, and Thomas.

    2. Ginny Says:

      Thank you, Shannon, here & below for your posts.

      5-4. And perhaps we could hear the last of leftist cliches that the Souters & Ginsbergs of this world fight for the “little man” against “big business.” All either big or small business needs is predictability, which is dependent on transparency and property laws. What could be worse than that some idiot could take you out of a profitable corridor for “the general good.”

      Will this affect the housing bubble? It seems pregnant with unintended consequences.

    3. Shannon Love Says:

      “How would writing your representative help overturn this ruling?”

      Individual states can prevent the state and local governments from abusing imminent domain. On the Federal level, we would need to pass a amendment reasserting the traditional interpretation of the taking clause.

    4. Robert Schwartz Says:

      I am OK with this one. It is in the category of a stopped clock is right twice a day.

      In my view the theory of incorporation of the bill of rights into the 14th Amendment is a crock. Therefor, in my view, the takings clause does not apply to the states and the judgment in Kelso is correct for the wrong reason.

      If the condemnor had been the Federal Government, I would have thought the judgment wrong. There the takings clause should be read in conjunction with Art. I Se. 8. The only provisons of that section which allow the Federal government to acquire properties are:

      “To establish Post Offices and post Roads;

      “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;”

      Which define the public uses referred to in Amend V.

      “nor shall private property be taken for public use without just compensation.”

    5. respublica Says:

      Eminent Domain diluted

      The Supreme Court ruled today that encouraging economic development by seizing one private individual’s property and handing it over to a second private individual was a Constitutionally valid interpretation of the 5th Amendment’s takings clause. Holy …

    6. Jonathan Says:

      It’s a terrible decision that shows contempt for the rights of individuals. It’s morally outrageous. To the extent that local govts treat the decision as license to steal people’s land it will only engender popular hatred for the courts and the law. Way to go, you statist jerks.

      If we’re lucky, state legislatures will address the issue by passing reasonable eminent-domain laws that preempt independent action by local govts. That’s how some of the better state govts handled local govts that passed abusive anti-gun laws. Citizens of states that don’t reign in eminent-domain abuses might find their property values lower as compared to states that do.

      Congress doesn’t have the balls to impeach the five justices who voted for this POS, but tarring and feathering might be the next best alternative.

    7. Ginny Says:

      Private property is more important than money; I can’t imagine anything (exempting freedoms and necessary to our exercise of them) that would be more important to us than security in our homes & our businesses. Life is full enough of variables – property ownership shouldn’t be one.

      Also: I suspect potential taxes from ambitious developers are chimeras more often than city councils recognize. Boosters run local governments. That isn’t necessarily bad – Austin traffic is a pretty good example of what’s wrong with hippy zoning & I’d prefer an optimist on my city council. But boosters need restraints. When the housing development or the industry doesn’t take off, little tax revenue actually hits the city’s coffers; meanwhile, the old, steady, boring base is lost.

    8. Tyouth Says:

      The bottom line is that, with a nod to Bob Dylan, “money doesn’t talk, it screams”.

      “Screw the flag” is a property issue too; by gawd, I paid for it I’ll do as I please with it.

    9. Bruce Chang Says:

      Indeed, as the “Right” seeks to foist its sensibilities on everyone, the “Left” seeks to further rob us of our individuality. The Party of Jefferson, which once championed a near-anarchic vision of America as a nation of yeoman farmers, is now aligned with the justices who would do most to destroy that identity. For all his exertions in favor of a vigorous executive branch, even Hamilton would’ve condemned this, as he knew that property is the one thing that compels men to tolerate each other, and which instills in men that love of liberty which informed the American Revolution.

    10. Fred Says:

      Any small property anywhere near a likely develoment path just had its value cut in half.

    11. Don Says:

      Part II.

      The Judges are not august [to include the implication of Augustus Caesar]. You can howl all you want, but you keep avoiding the obvious. The judiciary must be directly accountable to the people. There is no need for a flag, property, prayer, etc. admendments. There is a single one need for the judges like the Senators a hundred years ago, to face the people directly for their offices. Avoid the simple route and end up with an EU style Consitution which grows to cover every possible ‘Dred Scott’ decision of the court.

    12. tnv Says:

      If the govt. took the land “… without just compensation,” I would say it was wrong. To take the land ” with just compensation” is proper when the good of the peoples is at stake. To refuse to sell land that the govt. wanted just to refuse the public access to the property is wrong.
      The “good of the peoples” is ALWAYS more important then the “good of the single person.”

    13. MM Says:

      “The ‘good of the peoples’ is ALWAYS more important then the ‘good of the single person.'”

      To paraphrase Stalin.

    14. Lycurgus Says:

      The reaction to Kelo is more heat than light. I don’t see Kelo changing the law at all with respect to redevelopment takings, and I’ve litigated both side of that isssue for years. A commentator can rightly believe in the position posited by Thomas that the power of eminent domain should be strictly limited to takings that are for government use only — but that hasn’t been the law for 70 or more years. I give Thomas credit, however, for being coherant and consistent in his intelectual approach to the issue. On the other hand, what has been the law is that: (1) the government cannot take property for the purpose of turning around and giving it to a private party, but (2)the government can take property that creates the independent harm of blighting conditions that cannot be overcome by the normal actions of the marketplace. That is how slum clearance and redevelopment has occured (and the debate about how effective urban renewal has been is entirely different).

      One of the problems with Kelo is that there are very few facts cited in the opinion to explain whether Phizer came to New London and said “take this land and sell it to me and I’ll build a new plant” — that has been and should remain a prohibited taking. On the other hand, was this a more traditional redevelopment effort where Pfizer showed up later to express an interest in purchasing formerly blighted land — that has been permitted under constitutional law, and apparently will still be permitted after Kelo.

      Your commenters who state that the states should act to restrict what, when, where and how the power of eminent domain should be employed are right on. That is the best approach to reining in overly aggressive government action.

    15. Robert Schwartz Says:

      I agree with Lycurgus. As I said above the Court was right for the wrong reason.

      The practice that SCOTUS let go is immoral. I have no doubt of that, but the place to argue morality is not SCOTUS, which has proved to be disastrously unable to make moral judgments. The matter should be decided in the legislatures of the sovereign states.

    16. Fritz Says:

      These ruling Mullas rendered a decision that makes me have to pay for a lawyer. I belong to a club in a northern state that is composed of more than 14,000 acres of lakes and land. 7 of the 9 large lakes are undeveloped and used only for fishing. The local county is constantly trying to expunge more tax dollars, often complaining how much more revenue they would be able to generate if the other lakes were developed. This decision gives them the green light to extort additional taxes by threatening eminent domain or just find a developer and do it. We are studying state law and looking for possible defenses to thwart any action by the county.

    17. Between Worlds Says:

      Kelo Reactions

      There’s been an enormous uproar over this case lately, and for good reason. The liberal wing of the Supreme Court has in effect voted in favor of local statism, by ruling that eminent domain applies even in cases where the land is being marked for pr…

    18. DS Says:

      “The ‘good of the peoples’ is ALWAYS more important then the ‘good of the single person.'”

      I agree with you Adolph.

      Signed, Joseph.

    19. Edouard Says:

      TNV — On the issue of “just compensation” — keep in mind that this is not necessarily fair. Let’s say a new developer needs 50 acres for a project, and the promise of significantly higher tax revenues than all current homeowners on that land can pay is too tempting for a city council, which invokes eminent domain for the developer. In the past, such developers have had to pay a premium (rightly so, IMO) to encourage the last holdout homeowners to give up their property. This ruling takes negotiation away from homeowners and pays them perhaps market value, not the premium that they ought to be able to try to negotiate with a wealthy developer to get them off of their property. “Just compensation” thus has the potential to be quite unjust for the little guy.