Maxine Waters on Kelo:

My imnpression is that liberals and the left have been somewhat divided in their response to Kelo (unlike conservatives and libertarians who seem to be largely critical, with a few exceptions). Howard Dean and Bernie Sanders both seem to be critical of Kelo, Nancy Pelosi seems to be ok with it.

Today's Washington Times ran this column by Rich Lowry discussing Rep. Maxine Waters's response to Kelo that indicates that she really doesn't like it:

"Government should be in the business of protecting private property," she told me in an interview, sounding every bit a member of the free-market group the Club for Growth. "Private property is precious in America."

What has galvanized Waters and a surprising left-right coalition in defense of private property is the Supreme Court's instantly notorious Kelo decision in June saying government can use its eminent-domain power to take property from one private owner and give it to another. The Constitution says eminent domain — used to force the sale of property — must be exercised in cases involving "a public use," a phrase the court has stretched to encompass any private purpose that will produce more tax revenue. Almost immediately, Waters was on the House floor denouncing the decision, part of a backlash that has dozens of states considering tighter rules in how they use eminent domain.

Waters is a longtime scourge of eminent domain. A few years ago the L.A. Unified School District wanted to take a park and private homes in the community of South Park to build a new school (which at least is a legitimate public use). Waters made it clear that if eminent domain were used, the residents, many of them low-income, would appeal it property by property, holding up the process for years. "We backed them off," she says. If anyone is trying to grab your home, you could do much worse than have Waters — whose public mood seemingly fluctuates between outraged and irate — on your side.

She is acting on a crucial insight — the right to property is the most important check on governmental power and abuse, especially for the poor and vulnerable. The National Association for the Advancement of Colored People filed an amicus brief in the Kelo case arguing against expanding eminent domain and recalling that it was often used in 1960s "urban renewal" projects to dispossess black property owners — "'urban renewal' was often referred to as 'Negro removal.'" Indeed, the naked logic of the Kelo decision is to take property from working- and middle-class people who aren't in a position to build big-box stores, casinos or condos and give it to wealthier interests, who can create more tax revenue and inherently have more political influence. Poor property owners usually don't have the wherewithal to fight back. "I think they'll just be run over," Waters says.

Alabama just adopted a law prohibiting the state and its localities from taking property for private development. Delaware has tightened its law, and even Connecticut — home to the dispute that spawned Kelo, when homes were to be taken for a Pfizer development — is suspending its use of eminent domain while it considers whether it has taken it too far (quick answer: "yes"). Congress is considering denying federal funds to support any projects that involve taking property for private use, and Waters is supporting two of the Republican-sponsored Kelo backlash bills. "I'm working with people I've never worked with before," she says.

My casual impression is that the response to Kelo reflects a division along class lines in the liberal coalition, as upper-middle class liberals such as Pelosi (and similar commentators such as here) are generally fine with Kelo, whereas rural (Dean/Sanders) and lower-income Democrats (and minorities in particular, if Waters is representative), are very concerned. So, in addition to the left-right coalition that the article notes, perhaps there is an interesting rural-urban coalition at work here as well.

This may simply reflect who expects to be the likely winners and losers from tossing homeowners into the maw of local political processes. As Waters indicates, upper middle-class homeowners are not likely to bear the cost of the ability to take property for private development, but may favor the amenities that such development may produce, whereas lower-income and working class neighborhoods are more likely to be simply "run over" (to use Waters's expression) with little direct benefit in exchange.


I call readers attention to some thoughtful posts on the Comment Board, several from self-identified liberals who also express little love for Kelo as well. (See this one, for instance.) As they note, Rep. Pelosi's statement is somewhat ambiguous (which is why I used the phraseology "seems to be" in my original post as well). It may be that dislike for the ruling really is quite widespread across ideologies and class, with only a small handful of supporters even among liberals. I was just guessing that there must be some support for Kelo somewhere out there, but it really may be that I am wrong about that. Anyway, click over to the Comment Boards for some interesting thoughts.

Shelby (mail):
Though I'm reluctant to assume Waters is rational in any public pronouncement, and alarmed to agree with her, I think Todd's right in his assessment of the political breakdown. He neglects (or assumes) one more aspect, though: many opponents of Kelo don't take that stance out of self-interest, but out of principle.
8.9.2005 7:43pm
Matthew G.:
This is purely anecdotal, of course, but I'm not sure I've talked to any upper-middle-class or upper-class liberals who agree with Kelo. Most of the people I know could fairly be termed liberal and I've yet to meet one who wasn't appalled by Kelo.

It's worth recalling that the justices in the majority found it important that the City of New London was trying to promote economic development and create jobs. This was what I found most unsettling in the Court's reasoning. Though I usually dismiss the notion that the Supreme Court's jurisprudence is flawed because the justices are "out of touch" as a complaint lobbed by whoever loses a given case, I am moved to wonder in light of Kelo. The notion that an abstract idea of economic rejuvenation can justify kicking people out of their homes wouldn't be stated with such facility by someone who really thought of himself as an ordinary person, would it? I think there's going to be a lot of head-scratching among liberals about how "their" justices could reach this result, and the only explanation I can think of is that, political leaning aside, it's easier to say that you're kicking someone out of his home for the good of society when you haven't seen a picture of his kids.
8.9.2005 7:52pm
Jimmy Sevenbakers:
To this uneducated layman, SCOTUS has erased one of the its checks on the Executive and Legislative branches' powers; Now no citizen is protected from eminent domain.
8.9.2005 8:29pm
Geoff (mail):
I'm with Matt - I've had a hard time finding liberals who are particularly happy with Kelo. Is there any non-anecdotal evidence suggesting things one way or the other? If not, then I'd be a little concerned that commentators are simply reinforcing their own political worldviews instead of making factual judgments.
8.9.2005 8:48pm
Kristian Holvoet (mail) (www):
I am as surprised as I can be that I actually agree with Mazine Waters. Stunned is more like it. Only if it were Cynthia McKinney could I be more startled (and at that point I would have to seriously re-evaluate my position...)

But she is correct, the big losers will be true middle class and below, especially those in older neighborhoods.

Now, remember, the Republican Party is nearly the party of the rich elite as many make it out to be, and the NE and NW Liberals are considerably wealthier than many others. So the fact that on some issues, rural (conservative) and urban (liberal) 'poor' may have a lot in common wrt to property rights should not be as surprising as it seems to be.
8.9.2005 9:10pm
Robert Lutton:
I don't get you right wingers. First you complain when liberals on the court overturn acts of the legislature and stretch the constitution to protect people (such as in the sexual privacy cases). Then you complain when they DON'T do it in KELO. If you want to be originalists I think you have to agree that the founding fathers would have been shocked at the local government taking the land (thinking it unjust) and just as shocked if the Supreme Court had stuck its nose in. They would have said that if the local folks don't like it, vote in a new local government. Do you guys really want the federal government to have to decide what is and what is not public use in every eminent domain case from here out? Why have the states at all....Hey maybe you've got something there....
8.9.2005 9:34pm
I will not attempt to disturb Prof. Zywicki's belief that the only people who want to take others' land belong to some cabal of latte-drinking liberals.

However, it should be clear that what people are opposed to is the concept of eminent domain being abused in the context of eminent development, as opposed to the Kelo decision itself. You show me any government taking that you regard as an abuse of power, and I'll gladly demonstrate that it was legal prior to Kelo. The Kelo decision has simply galvanized opposition to a long-standing problem at the state and local levels.

If you want to know who REALLY supports the concept of an unlimited takings power, lobby your state government for tighter restrictions on eminent domain, as is taking place in many states already. Who will stand opposed? I'd imagine some developers would oppose such limits, together with whichever politicians they have in their pocket. Some local governments looking to improve blighted areas might stand in opposition. But whatever the ideological profile might be of those who oppose actual proposals for eminent domain reform, I'd wager you're not going to see some massive movement by liberal elites to keep eminent domain as it is.
8.9.2005 9:45pm
I'm disinclined, personally, to see the line as rich/poor...I think it's more suburban vs rural and urban.

In the latter areas, it's far easier for someone to be "run over" by eminent domain proceedings, regardless of wealth. Most people in suburbia, though, are wealthy enough, educated enough, and in communities generally of a size where they can actually put up a fight.
8.9.2005 9:50pm
Leon Sinoff (mail):
I would quibble with Todd's hypothesis that the break within the liberal camp represents a class division. I think it much more likely represents a Washington insider/outsider division.

I would suggest that Howard Dean's opposition to the ruling stems not from his status as former governor of a semi-rural state, but from a civil libertarian streak evident in some of his campaign positions (pro states rights on gun control, history of annual balanced budgets in Vermont). Its the same streak that made me such an enthusiastic supporter of his candidacy.

While I have a tendancy to defend Dean to a greater degree than he probably deserves, I did find it amusing, in a sad way, that he automatically assumed Kelo was a 'conservative' decision.

As for Maxime Waters, it's worth remembering that amici for the Institute For Justice's position included the NAACP and the AARP.
8.9.2005 9:53pm
just me (mail):
A reply to Mr. Lutton:

You accuse "right wingers" of hypocrisy for opposing both Kelo and the "sexual privacy cases," as you say that a decision going the other way in Kelo would, like the privacy case, involve "overturn[ing] acts of the legislature and stretch[ing] the constitution to protect people."

I will grant you that both involve trumping a legislature, but almost any originalist will dispute that a decision the other way in Kelo would be a "stretch," as in fact, it was the actual Kelo decision that was the "stretch." The Constitution allows takings for "public use." Giving land to a private developer is not public use. Even the majority had to first segue from public "use" to the term "public benefit" before asserting that this taking gave the public a "benefit."

Now, you are free to agree with the Kelo majority, and perhaps you buy into the "public benefit" test. But whether you do or not, the case for saying that public use REALLY MEANS "public use" is far stronger, based on text, than for finding abortion in "due process." Thus, it is not fair to accuse originalists of hypocrisy for both Kelo and Roe (etc.). It's one thing to argue Roe or Kelo, each on its own merits (or lack of merit), but the hypocrisy charge just does not hold up.
8.9.2005 10:27pm
Splunge (mail):
It is a whopping big shame the Founders didn't think to put a definite and strong defense of individual property rights into the Constitution, in print bold enough that no mumping Court could possibly need to put on their glasses to read it. I can only speculate they overlooked this essential liberty, inasmuch as in their time it may have been unthinkable that property rights in fee simple could be anything other than almost absolute.

If only Madison had grown up in England, with its ancient crabbed system of manorial rights and covenants, he might have been a bit more careful. I should like to re-assemble his dust and kick him in the ass for that.
8.9.2005 10:41pm
While the likely winners and losers might factor into a policy argument about eminent domain, they have nothing to do with whether the decision was right or wrong as a matter of law.

Giving land to a private developer is not public use.

I know this issue has been discussed to death, but I still haven't heard a satisfying answer to this question: If giving land to a private developer is not public use, how is giving land to a private railroad or a private grain mill public use? In his Kelo dissent, J. Thomas says mills were things "the public could legally use and benefit from them equally", but how is a mall any different?
8.9.2005 10:45pm
Byomtov (mail):
Speaking as an upper middle class urban liberal, I don't like the Kelo decision. I don't think Zywicki's "casual impression" holds.
8.9.2005 10:55pm
Splunge (mail):
If giving land to a private developer is not public use, how is giving land to a private railroad or a private grain mill public use?

Dunno about mills, but aren't railroads some kind of "common carrier" where they are obliged to take any passengers who are well-behaved and pay the fare? But a mall is strictly private property, and you can be booted off for any reason or no reason, I think. So that would be an important difference.
8.9.2005 11:39pm
But a mall is strictly private property, and you can be booted off for any reason or no reason, I think.

I don't think this is true - a mall must be considered a "public accomodation" and thus must be subject to antidiscrimination law, I would think.

But even if it were not, isn't this an excessively subtle distinction to read into the words "public use"? If New London forces the mall to admit anyone, would that make the taking acceptable?
8.9.2005 11:52pm
aslanfan (mail):
"when homes were to be taken for a Pfizer development"

...well, not really, but close enough for Lowry, and Zywicki evidently...Biff, you hit the nail on the head...the is no principled difference. Even Thomas recognized that. That's why he said the court would need to overrule more than a century of precedent inorder to rule for the landowners.
8.9.2005 11:52pm
Jeremy (mail):
I don't believe that the economist's "winners/losers" calculus squarely applies here.

I think most people simply oppose, on principle, governmental action allowed by Kelo. If you want to string together an economics argument about "costs" associated with giving up principles, fine. But I don't think the raw calculus of winners and losers applies.

My family is a politically powerful family that politically dominates the small town in which they reside. It is almost impossible to conceive of a Kelo-style taking of any of their land, mainly since those takings seem to be mostly municipal- or county-authorized takings.

Yet no one in my family likes Kelo; they think it's a horrible decision, even though they will almost certainly never be adversely affected by it, and might benefit from its use in their town. Matters of principle are often not subject to raw economic calculation.
8.10.2005 12:00am
Buck Turgidson (mail):
The claim that "Pelosi seems to be OK with it" seems to be just short of a smear. In the very comment that you cited she goes out of her way not to take a position Kelo. Unless you are a part of "if you are not with us, you are against us" crowd, the assumption that she supports the outcome of the decision is ludicrous. Pelosi stated that she's OK with the Supreme Court decisions as they are in the sense that SC gets to decide what is legal and what isn't and it's not up to Congress to sandbag their decisions. This says absolutely nothing concerning the specific actions now protected by Kelo. Prior to the decision, the Left has been almost universaly opposed to the practice. Unless there's been some earth-shattering revelation that I missed, nothing's changed on that count. The point is that Congress cannot do anything about it, while states can. Opinions of congressmen on an issue they can do nothing about matter very little, except during the election cycle.

I am somewhat surprised. For a legal scholar, you seem to be pretty loose with facts.
8.10.2005 12:09am
Kate S.:
Similar to Byomtov, I am an upper-middle class, home-owning, somewhat urban white liberal who disapproves of the Kelo decision.

It's unfair (and ignorant) to look at a handful of public servants and, based on their backgrounds, assume that others with similar backgrounds would have similar feelings.
8.10.2005 12:15am
Kate S.:
I don't think this is true - a mall must be considered a "public accomodation" and thus must be subject to antidiscrimination law, I would think.

But even if it were not, isn't this an excessively subtle distinction to read into the words "public use"? If New London forces the mall to admit anyone, would that make the taking acceptable?

In that case, what about the city (Cypress, CA) that threatened to use eminent domain to take church property for a Costco? A Costco requires you to join and be a member to even enter the story--hardly 'public use.'
8.10.2005 12:23am
In that case, what about the city (Cypress, CA) that threatened to use eminent domain to take church property for a Costco? A Costco requires you to join and be a member to even enter the story--hardly 'public use.'

Well, you have to pay a fare to get onto a train, even if it's a "common carrier" line, so I still don't see the distinction. As long as no one was arbitrarily prevented from obtaining a Costco membership (and again, antidiscrimination law must apply here), it's open to the public.

In any case, I'm not trying to defend the use of eminent domain in these cases as a practical matter - I think it's terrible. I just don't see how you can read this nuanced policy into two words of the Fifth Amendment, nor how this could possibly have been the original meaning of the clause.
8.10.2005 1:25am
Lynn Gazis-Sax (mail) (www):
I'll pile on as a suburban middle class liberal, just as surprised to find myself in agreement with Clarence Thomas as others are to find themselves in agreement with Maxine Waters, who is shocked that anyone at all likes Kelo. I hope the state backlash bills on this matter pass.
8.10.2005 2:36am
Well, I guess someone should speak up for the upper-middle-class liberals who thought Kelo came out right, so that'll be me. I'm not sure that the compensation paid in eminent domain proceedings is high enough, and I'm certainly not in favor of the power being used to give handouts to wealthy corporations or developers, but the general idea that a community (state, local, or federal) has the power to take land from people, pay them fairly for it, and put it to a use that the community prefers strikes me as quite a good one.

A fair rate of compensation would allow someone whose property was taken to buy comparable property in a comparable neighborhood without suffering a net loss in economic terms. Sure, there's some uncompensated psychic harm in kicking people off land to which they're attached, but hey, you know, people are attached to a lot of things, but that doesn't generally give them a veto power over decisions affecting those things. Private property is a good thing, I think, but that doesn't mean it needs to be fetishized.
8.10.2005 5:32am
yclipse (mail):
An interesting point: just about everyone who comments on the case in the popular media refers to it as authorizing the government to seize private property, as if no compensation had to be paid.
8.10.2005 10:14am
NR (mail):
To hypothesize class and race divisions among "liberals and the left" based on five individuals' reactions to Kelo is not just a "casual" impression; it's a worthless one.
8.10.2005 10:38am
Tony Dismukes (mail) (www):
Chalk me up as another liberal who really disliked the Kelo decision. All of my liberal friends with whom I've discussed the decision dislike it as well.
8.10.2005 11:10am
Jimbeaux (mail):
Buck, that's an interesting defense of Rep. Pelosi. If she had come out four-square in favor of Kelo, that would be a lot more defensible than her silly statements about how Congress shouldn't legislate in response to SC decisions. That's ridiculous -- I've never heard anyone argue that Congress can't do that. Whether such a congressional response has merit depends on the individual case. And whether the response is constitutional or not.
8.10.2005 11:11am
Andy Freeman (mail):
> A fair rate of compensation would allow someone whose property was taken to buy comparable property in a comparable neighborhood without suffering a net loss in economic terms.

If a poor person invented something of great value, would it be okay to seize the patents, give said person their costs and their prevailing wages for their time, and give the patent to someone who is in a better position to exploit the invention?

No? But the above person thinks that the person whose real estate is being seized should not get to benefit from the more valuable use that their property is being put to post seizure. Why is real estate different? What other property falls under the real estate rule?
8.10.2005 11:13am
Mark (www):
I'm a white, urban, Catholic conservative.

Private eminent domain has a long history in Missouri. In my town, Saint Louis, the use of this has been in mainly small, historic African-American neighborhoods that are surrounded by more affluent whites; in particular, Meacham Park and parts of Richmond Heights. These areas were poor, but stable, and these takings just reinforce the negative image of The Man. In each case, they were justified by greed -- greater tax revenues from 'big-box' retail business, and cheap real estate for the developers. Forget what you learned in the 1980s -- greed is NOT good.

Back in the 1950s and 1960s, St. Louis did the same thing for 'open space', a far more nebulous concept. Huge chunks of land were bulldozed for no real purpose except dislocation of residents.
8.10.2005 12:22pm
Shelby (mail):
Some people above have made much of a supposed urban-rural alliance against Kelo vs suburbanites in favor of it, at least on self-interest grounds. Note, however, that the area of New London that Kelo actually addressed is a lower-middle-class suburban neighborhood. Seems to me eminent domain is a threat everywhere, except to the truly wealthy or well-connected. (And just because you have power in your town doesn't mean the state won't run roughshod over you, Jeremy.

Regarding the "common carrier" issue, there's a very long body of law (stretching to pre-America Britain) defining that. Suffice to say, a retail establishment is not; a mill or a railroad is.

And yes, the New London development was for Pfizer. The homes at issue were not condemned specifically for Pfizer, though; in fact, the development plan specified no use for that land. Yet, because it was part of a "comprehensive plan," no use = public use. Hmmm.
8.10.2005 1:22pm
Ciarand Denlane (mail) (www):
If neither the liberals nor the conservatives like Kelo, maybe its support comes from those of us who are neither conservative or liberal. I don't think the exercise of eminent domain at issue in Kelo was a good or justified idea. However, it's not clear to me that the federal courts can draw a clear and principled line that would put real teeth in "public use."

One man's (Mark, supra) idea of abuse of the power for nothing more than "open space" might be another's idea of a creation of a central park. Some people consider running schools a kind of activity that the States may properly engage in. If so, does it really matter whether the schools are public or private (eminent domain OK for U.Conn. but not Yale?), or whether they are take-all-comers common-carrier-like or selective (not the same distinction as public/private since there are private schools that take all comers (or nearly all), and there are public schools that are open only to a small portion of the public (which is why the University of Michigan affirmative action cases were so difficult))?

Thus, while I do not agree with the taking in Kelo, I am undecided whether policing that kind of thing can be done in a principled manner by the federal courts or done better by those courts than by the electorate and state courts, and I am therefore undecided about rather than outraged by Kelo.
8.10.2005 1:22pm
Andy Freeman: Your hypothetical about taking a patent away from a "poor person" is hardly a convincing counterargument. The patent system exists to "promote the Progress of Science and useful Arts," not because people have some kind of moral right to all the profit arising from the ideas they think up.

So, in fact, after 17 years (or 20, now), we do in the patent context more or less the same thing that you're so upset about in Kelo. We take the property away from the inventor and put it to "public use" by letting anyone and everyone copy it. We've paid them "compensation" by giving them a temporary monopoly.

Are you horrified by the idea that patents eventually expire?
8.10.2005 1:43pm
Shelby (mail):

There's a principled and interesting argument that all real property should be leasehold from the state, perhaps for a term of 99 years. However, that's not in fact the system we have traditionally used. Patents, on the other hand, have always been either for a term of years, or (in Britain) at the pleasure of the Crown. If we're suddenly going to change the real property rules that have applied for centuries, maybe there should be some debate outside a federal courtroom?
8.10.2005 2:19pm
markm (mail):
Railroads were a logical extension of the roads and canals that eminent domain was originally and most properly used for. All three are used by the general public for transportation, whether or not tolls are collected, and whether built and operated by private companies or the government. (Some of the earliest highways in the USA were privately-owned turnpikes, that were probably less regulated than railroads became.) All three are subject to geographical constraints in routing such that without eminent domain, often one hold-out could prevent the construction of the entire project. Power and telephone line routes similarly may require taking small slices of property by eminent domain to get a reasonably direct route.

OTOH, malls, mills, Pfizer headquarters, or GM plants (see Poletown) could be located wherever people are willing to sell their land without coercion by eminent domain. Note that 18th and early 19th century mills, blast furnaces, and factories often were water powered and hence had to be located at a point where the stream could be dammed. That changed when they switched to steam power - but apparently the precedents that allowed the occasional use of eminent domain to take a favorable streamside location have never been rethought.
8.10.2005 2:50pm
Shelby: There was debate outside a federal courtroom. There was debate in the state and local legislatures that approved the redevelopment plan and authorized use of the eminent domain power. There was also debate in the state courts, including the Supreme Court of Connecticut, that approved the taking as consistent with Connecticut statutory and constitutional law.
8.10.2005 2:57pm
hey (mail):
eminent domain shouldn't pay "fair value", as the fair value is going to jump rather significantly and everyone is entitled to their own definition of "fair" (people routinely get their property seized because they value their property more highly than the government does and then are only compensated on the cost of the property, rather than on effects the seizure would have on their business, family, etc). rather, seizures should pay 5 times the higher of either the market value assessment or the value used for tax calculations.

by making compensatio costs very high, this encourages politicians to avoid using eminent domain but keeps it as a tool for exceptionally pressing needs. it also would eviscerate the practices of seizing land for private development for economic development or improved tax revenue. this seems to be a much better method of protecting people as words can be twisted and politicians will conspire to invent new meanings, but mandatory compensation levels are much harder to get away from.

politicians having to personally cover the costs of eminent domain would also be a good idea.
8.10.2005 3:08pm
Shelby (mail):

Ok, got me. Federal and state courtroom. The state legislature didn't play a role; the local town council punted to an unelected commission. There's your total debate on this rewrite of the nation's property laws.
8.10.2005 3:31pm
Shelby: I disagree. The state legislature certainly did play a role. It enacted Conn. Gen. Stat. sec. 8-186, which provides:

It is found and declared that the economic welfare of the state depends upon the continued growth of industry and business within the state; ... that permitting and assisting municipalities to acquire and improve unified land and water areas ... for industrial and business purposes ... are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.

Moreover, "[i]n January, 1998, the state bond commission authorized ... property acquisition to be undertaken by [the development corporation] in support of the project." Kelo v. City of New London, 843 A.2d 500, 508 (Conn. 2004).

As for the city council, if by "punt[] to an unelected commission" you mean "vote to approve the development plan and vote to authorize the development corporation to acquire properties, including, if necessary, by eminent domain," you're correct.

Finally, I think that "rewriting the nation's property laws" is an untenable description of what the Connecticut and U.S. Supreme Courts did, considering that the Conn. Supreme Court had held all the way back in 1866 that "any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use," Olmstead v. Camp, 33 Conn. 532 (1866).
8.10.2005 4:56pm
Shelby (mail):

Thanks for the interesting research. The Connecticut legislature is entitled to make its own interpretations of state constitutional authority; arguably the provision you quote constitutes the result of a debate over property law, within that state. I don't see how the assertion that X and Y are public uses under Connecticut law amends the US Constitution. If the drafters of the latter wanted to say that industrial and business purposes were public uses, they could have; they didn't. The only way the US Supreme Court could get there was by extending an already-overextended line of argument, a classic example of the slippery slope.

I have no doubt many unelected bodies signed off on the overall project, but that tells us little about the legitimacy of their doing so, or the depth of review they applied. (Presumably the legitimacy comes down to the judicial review at issue, ie this debate.)

By "punted" I mean the town council (or is it selectmen in this case?) passed all authority for assembling the development project to the appointed commission, though it still had to vote up or down on the final plan. That meant the council never had to delve into such matters as the appropriateness of this condemnation.

Finally, for the reasons given above I do believe that this constituted a substantial revision of property rights in this country. However, your comment misreads what I stated in a prior post. I was replying to your suggestion that property rights in a patent were in a relevant way analogous to those in real estate. That would constitute a much more dramatic change in property rights, and that is the proposal I was saying would require much more debate. My apologies for my role in conflating the two arguments.

Thanks again for your tone in this back-and-forth.
8.10.2005 6:41pm
Robert Lutton:
Dear "Just Me"

you say;

The Constitution allows takings for "public use." Giving land to a private developer is not public use. Even the majority had to first segue from public "use" to the term "public benefit" before asserting that this taking gave the public a "benefit."

You should read it again. The constitution says "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation".

The constitution doesn't say a word about defining public use in a particular way....the whole thrust is due process and compensation. You need to read a little of the history of the period. For example here it is in Calder Vs Bull (1798):

"It is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws; unless for the benefit of the whole community; and on making full satisfaction. "

Seems pretty clear to me...
8.10.2005 11:22pm
Victor Davis (mail) (www):
Roll Call 361 for House Resolution #340 has something to say about party affiliation and Kelo, one would think. The resolution was to express the sentiment of the House that Kelo was wrongly decided.

98% of present Republicans voted in favor of it; 75% of Democrats. I don't see a patter in the Democrat names in the 25% of their party, but perhaps someone else will.

There is little meat in such a resolution, so I would presume that more people would vote in favor in order to "go along" with popular sentiment even if they were secretly in favor of the ruling. A better test would be opposition to the funding statutes proposed earlier this year, but I don't have quick access to status information on those proposals.
8.11.2005 9:27pm
SimonD (mail):
I think the difficulty for liberals - which accounts for why dissent from conservatives has been a full throated roar from conservatives and mere polite disapproval from liberals - has everything to do with who was in the majority. Now, I know Howard Dean doesn't realize this (q.v.), but most democrats I talk to do realize and understand that it was "their" justices who voted for Kelo. You can't blame this one on, in Dahlia Lithwick's phrase, "Mean ol' Nino". So Democrats don't know quite what to do. They can't attack these justices too much, because they realize that to do so is essentially defecating on their own front steps; these are the justices who are protecting Roe, which is all the dems have left at this point, the one thing for which they will sacrifice all else (truly "salvae Roe, ruat coelum"), so attacking their intelligence = bad idea. Likewise, and worse yet - denouncing Kelo would require the worst possible thing for liberals - they would have to drop their hate campaign against Justice Thomas, whose opinion in Kelo was entirely correct.

Privately, most that I've spoken to think it's just as terrible a decision as I do. However, it's like when Scala voted with the majority in Raich. Those of us with a fondness for Nino were far more muted in our dissent (after last term's shenanigans, there will, apparently, be "Clarencemania" forthcoming soon, with Prof. Barnett's approval, I believe.)
8.11.2005 11:03pm
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