I don't know. The Supreme Court usually takes up cases when it thinks there's a real question at hand. That is, the case being considered ventures into legal territory that does not fall under previous territory of precedent or requires new consideration.  That sort of implies that something wasn't clear and now is  and therefore something has changed. If anything, LeMieux seems to be strenghtening the case for the idea that this boondoggle is a very different creature from the public roads of The Power Broker.  The real question seems to be--suld courts always defer to the legislature in ambiguous cases of public interest? Is there anyone outside of the majority of the legislature that someone can appeal to when they think they are being wrongfully forced to sell? What outrages me is the idea that in fact, the courts should. I was hoping the judiciary would turn back that precedent. If you can't appeal to the judiciary branch, then you are completely beholden to a single branch of government. Say a state legislature has a strong majority in one party. What prevents it from turning around and concocting some ambiguous need to for invoking eminent domain over a political enemy's house? You cannot even appeal to a judge?  There is no check and balance.  LeMieux shrugs at O'Connors mourning over the fact that the "public interest" might as well be deleted; but it is not deleted and if you're going to blame the Constitution, you have to acknowledge that.

Can we say with certainty what's reallly 'public' and what's 'private' anymore, when it comes to urban development?  I think that's one of the more interesting angles here.  In many cities, it's private companies that are building outdoor shopping districts and the like that are replacing old downtowns.  They're private, but with public space.  And look at sports stadiums (though I realize they only license the naming rights, but still, it's a crossover).  
In today's cities and towns, much of what was once public is now private.  Or at least private-with-huge-public-subsidy.  THAT's the real issue.  Kelo is just indicative of this changing mentality.  

Notice that like with Raich, the liberal justices all ruled in favor of government power, while the conservatives ruled in favor of individual rights.

Just something to remember before you get all riled up over the next Supreme Court nominee. 

I'm surprised nobody has brought up another political angle:  Kelo is very likely the needle that will burst the housing bubble (how much is your home really worth if now the local city council can ED it for a Wal-Mart at any time?).

So, now, when trillions in home equity evaporate, Bush will be able to blame the liberal justices.  Helps him in the fight for his eventual nominees, and allows him to point the finger at someone else for the 2006 midterms.  Stevens, Ginsburg, et al. have really handed the Democrats a poisoned apple here.

I think eminent domain is reasonable, but it ought to be for a clearly public purpose--a road, a school, a park or a reservoir.
I don't think anything so intangible as economic development ought to be worthy of it.  Higher property tax revenues or giveaways to large developers do not constitute "public use" in my book.
-- Abby

PB,

   The problem with your statement that 'The state legislatures can always narrow the decision' is that MY and several others on this list are popping corks and showering champagne on each other over the death of federalism.  More national control over everything!  Yay!  One step closer to Marx's socialist utopia.   Woo hoo!

   Because if the states do narrow the ruling, how long before someone comes along and says that the states don't have the right to make those decisions, because it violates interstate commerce?

    With each passing month, the "penumbra" of what the Federal government can regulate and control grows larger.  Eventually, they will shut down the Second amendment, because owning weapons interferes with interstate commerce.   And then, with nothing to stop them, they will come for the first, because badmouthing public citizens somehow interferes with interstate commerce as well.   

   And MY will be carrying water for them, protesting that it's only a special case, just a minor issue, no one could legitimately get upset because the Fed is controlling speech - surely not every type of speech is acceptable, after all.   All because, as far as I can tell, absolute federal control over the economy and the states  is more important to him than individual rights.

Hey, here's a question. I'd really like it if someone can jump in and give me some info on this.

Is there any way in which this ruling is a good thing from the point of view of environmentalists? That is, does this protect the right of governments to seize property to protect, say, an endangered species?

Or, to put the question more broadly, can this ruling be seen as a victory for progressives?

I think the ruling was probably right. Al of the energy that is being wasted in outrage should be attempts to limit corruption in the process at the local level, somehting that is already illegal but far too commonplace.
I think I posted this idea at Hit and Run a while back, but how about adding a process where an owner would be offered a price, and if she refused, would be required to pay the taxes on that value represented by the price. This process could go through several offers, counter offers, with the theory being that both sides would have better incentive to negotiate. It would require more uniformity of property tax laws, and they would have to have a reasonable bite.
Additionally, on the local level there should be commisions that approve these things with super majority votes. 

We could've still had worthwhile developments if the SCOTUS had given the test a little more teeth: perhaps explicitly adopting a second-order rational-basis test or even intermediate scrutiny.

This is exactly right.  Matthew -- and the Supreme Court, of course -- completely ignores in important limiting phrase in the Constitution: "for public use".

Now, I'm really not that surprised at Matthew's attitude: he is ALWAYS for more government power.  And that's what this case was about: how much power should the government have.

Nonetheless, I'll remember this the next time Matthew, or some other leftie, says something about the Patriot Act.  While all the lefties are up in arms about the government learning if you have read a book on how to make bombs, they are perfectly fine with with the government knocking down your house to make way for the next Walmart.  Priorities?

On the SE Waterfront seizures:  yep, you nailed it.

As always, the bien-pensant whitebread bobos of NW like Matt will do just fine post-Kelo.  It's those inconvenient communities of color on the other side of town that will suffer far more.

They are more at risk. Especially African-American and Latino communities (supposedly we liberals, who are supposed to champion such folks, should know more) in lower-middle-income neighborhoods where the sales pitch to local officials is much more enticing because of the differential in valuation between current property values and the proposed property values. What everyone has failed to see is that without state-level protections in place that overturn this ruling, a devastating trade will take place.


Here is the trade that is so irresponsible. Neither the developer nor the city officials are really accountable for all those promised tax revenues. The seizure can take place, the developer can take the land at below market rates, clear a profit on that, build the development, clear a profit on that, then skate by selling off to an investor group before any tax benefits can be realized, locking in their profits. The entire development can fall apart and tax receipts can go negative, and the people who promised that good things will flow from the seizure will be long gone, with their money.
 
This is a gift that keeps on giving, too. What, you thought that was where the damage ended? Right. City officials will project city revenue based upon these falsified tax receipt promises, lock in bloated payrolls and even more underfunded pension benefits for civic workers, and then, when the tax receipts don't materialize, guess who makes up the difference? Even if you are safely protected in some way from a direct seizure, the economic impact of these seizures will hit you like an eighteen-wheeler truck. You think property taxes are bad now? You ain't seen nothing yet after these debacles are through.

Now a cityh or town council that wants to develop your undeveloped land because it's good for the local economy can force you to sell it to them. 

Developers will love this!  Economics over preservation!

So, today I got on the Metro and looked at my Express and saw the headline "OK Given for Home Seizures" and wondered "WTF--it's not like people can control where they have a seizure."  Honest.  

***

IMHO, the MSM seems to hold much of the (ir)responsibility around any overreaction, b/c their coverage of this does sound like the SCOTUS gave government sweeping new rights to lay claim to people's property for frivolous reasons.  

Problem is, you are still living in that nice DC cocoon where from your point of view City Councils are full of, or potentially full of, community-minded activists, so now more attention by an alert citizenry will mitigate any fallout from Kelo.

Clearly, you don't follow the shenanigans of the DC City Council :)

Notice that like with Raich, the liberal justices all ruled in favor of government power, while the conservatives ruled in favor of individual rights.



This is just wrong. Most of the time in recent years, the conservative justices have ruled against individual rights and for state power.

I had my say on this in a discussion post that didn't get much response - and some of what I said was undoubtedly wrong, but this point deserves repeating whenever this argument is presented. Here's a chart of just the 5-4 decisions of the 1999-2000 term, prepared as a supplement to an article in which I argued the conservative justices were attempting to engage in "judicial nullification" of the 14th amendment.



In case after case, the conservative justices ruled against citizens attempting to hold the state accountable for harm it caused (whether under State OR Federal laws). In United States v. Morrison, all of the "conservatives" - including O'Connor - even voted to deny the federal government the power to povide a even a federal civil remedy to individuals against individuals, if the action arose out of acts which fall under state jurisdiction. They stated that any remedy must be directed at "state actors," since the "acts" fall under the state's jurisdiction.



However this followed on the heels of series of decisions in which the court had already held (mostly by the same 5-4 majority) federal remedies against state actors to be unconstitutional in both federal courts and state courts.



In short, they're not voting for individual rights, they're just voting against federal laws.



I haven't followed the court as closely since then so I can't give more recent examples, but it's just wrong to say the conservatives always vote for individual rights. They don't. It's true they often vote against federal power, usually ruling in favor of states' "sovereign immunity" - but remember, in those cases, they're most often ruling against an individual trying to hold a state accountable.



(Background: I'm not a lawyer, so I could be wrong. I researched these court cases as part of some articles I did while serving as About.com's guide to women's issues in 2000-2001. Those articles have been removed from About.com's server, but I put up a temporary copy of the "judicial nullification" article from my files here because I don't want to retype all of the html coding.)

The Federalist Society fuckers are on a mission to make private property completely invulnerable to any reasonable societal demand upon that property.

Yes, and clearly the way to combat the Federalist Society on this front is to make private property vulnerable to every unreasonable demand.

Folks, we're pretty damned lost if we can't see Kelo for the opportunity that it is.  This case, finally, gives the Democratic Party the opportunity to show the other side up as double-dealers and to be the property rights party.

For years now, the Republicans have been eating from both sides of the trough, on issues such as abortion, flag burning and the like.  They claim to be against abortion, and occassionally pass laws against it, knowing full well that those laws will be limited or reversed.  "Oh well," they contend, "when we get that next Supreme Court position we will . . . ," knowing full well that when a decisive spot opens, they won't.  They have to keep the elite conservatives happy, and that means double-dealing the rustics.

The same is true in this circumstance as well.  The Republican party is backed, in large measure, by the people who benefit from the Kelo ruling on public use.  Note what the party in power says:  They don't say "let's pass a law;" they say "just wait until there is another Supreme Court opening."  They keep the elites happy by furthering their consolidation of power; they keep the rustics happy by telling them that someday, a future Supreme Court will take action (if those pesky Democrats don't get in the way).

The Democratic side could explode this double-dealing now by arguing, "why wait?"  There is a commerce clause in the constitution, and the Democrats in Congress could propose legislation pursuant to it imposing limitations on municpal takings for economic benefit.  This kind of proposal would have two benefits: (1) the Democrats would suddenly become the party of private property, regaining a great deal of ground in rural and exurban America with one blow; and (2) the Republicans would be forced to choose with whom their loyalties lie.  I suspect, in the current climate, that they'd make the politically wrong choice, and attempt to strangle the measure. 

With this in mind, imagine a 2006 election in which the Democrats had as a platform measure the restoration of private property against "private takings."  Makes you smile, doesn't it?   

I have to disagree with you about this being a "devastating wedge issue" for Republicans.  I'd like that to be true, but it simply won't be.  There may be a few libertarian-ish Republican intellectuals and activists out there who care, but Republican politicians will support the decision -- mostly because it gives power to the developers, big businesses, etc., who fund their campaigns.  I seriously, seriously doubt you'll see any Republican politicians running on an anti-Kelo platform.

Hell, so would banning anti-environmental speech.

Kelo is a great decision, thank God.  Anyone who wants courts to have the power to step in and tell the legislature, "no that's not a good enough public purpose" is crazy.  If the city council starts randomly taking neighborhoods and handing them over to rich developers, guess what happens?  The city council loses elections.  That's called politics, and asking the court to step in is a bad, bad idea.

Has anyone taken a look at the New London project actually at issue in Kelo?  It's a pretty great idea in my opinion.  Do you really want a situations where a few stubborn holdouts can prevent large-scale redevelopment projects?  REmember, these people are getting compensated for their homes.

No, this is where I think the crux of the matter lies. This is not the sort of bizarre "takings" interpretation that the Federalists and Constitution-in-Exile nuts have been pushing; its precisely the opposite. Its actually existing private property ownership.

THe Federalist argument on takings boils down to -- zoning laws amount to confiscation of property since they limit the owners' chance to make a profit on it.

This case was about whether or not actually existing real estate can be protected, not about property as a metaphor for land developers' profits.

There's a world of difference between arguing against the Federalists that there are legimate bases for government action under the commerce clause and arguing with the Federalists that eminent domain must be for a demonstrated public use, not just an interpreation of the public good.

Who owns the property, the state or the citizen? If the citizen, then yes, they can hold out for any damn reason they want. If I don't want to sell my car, I don't have to. At least when private property rights meant something.

Dan

Eventually, they will shut down the Second amendment, because owning weapons interferes with interstate commerce.

1. affects the channels of interstate commerce?
2. affects the instrumentatlities of interstate commerce? or
3. substantially affects interstate commerce.

The Federal government may have a very compelling public interest in regulation and still have it fail the last test. No one wants kids bringing guns to school, but how in the world could that activity substantially affect interstate commerce? Likewise, how could gun ownership substantially affect interstate commerce?

Try not to get hysterical.

You'll have a new marina to tie your boat up in.  Maybe the people who lost their homes can swab the decks! More jobs, you know. It's good for the economy.

you write: "Thus, the only real question before the Kelo Court was whether a municipality may utilize the power of eminent domain to acquire "NON BLIGHTED LAND" and whether such land may be condemned for economic development purposes."

Yes, but those are HUGE questions, that before yesterday, were considered unconstitutional.  It is a big shift in the understanding of the Takings Clause that took 8 years to litigate.

I mean, the tone in your post is one of someone clearly not living in a perfectly good, well kept house that's been in your family for decades, about to be dozed under to make way for a Pfizer research facility.

 The only real question? As if that makes it an unimportant question.

 It's even a more important question where - as is not the case in Kelo - poor people in NON-BLIGHTED areas get forcibly evicted for, say, a sports stadium, and then they have to move and hope the next area they can afford isn't worse than the one they're in at the moment.

As for your last point, the people whose houses aren't being destroyed don't care enough (they have lives, families, their own houses to take care of, etc...)- if it were happening to them, they'd spend 8 years in the courts trying to stop it too.  That's not a great argument for letting people living in NON-BLIGHTED homes get forcibly removed against their will to put up something most people do not consider to be public use.

Moreover, it’s a decision that's been decided under State Law before. Poletown Neighborhood Council v. Detroit, 304 N.W. 455 (1981).



Poletown was overturned last year in County of Wayne v. Hathcock (PDF link). That case had almost exactly the same characteristics of Kelo (quoting from Marci Hamilton's excellent Findlaw article):



The case arose because the County of Wayne sought to condemn property near an airport. It claimed the taking was for public use, but it was public in only the most tenuous sense. The County had no plans to turn the land to permanent public service, but rather planned to give the land to private developers, who, in turn, planned to construct a business and technology park. In essence, the government was acting as a broker for business.



So where was the public use? The County claimed that the project would help the public by reinvigorating the economy, increasing tax receipts, and generating jobs. But of course, virtually any development would do that. That is the role of private industry, is it not? So if the County's argument were to be accepted, the "public use" limitation would be no limitation at all, and government could use its eminent domain power to arbitrarily choose between private property owners.

Al wrote: "Republican politicians will support the decision"
 
I'm on of those people who think this is a terrible decision that should be an issue for both parties. But I concur with Al's comment that politicians, both Republican and Democrat, will duck on this one. Just like they will duck on Gonzales v. Raich. 

There is only a small constituency for limiting the omnipotence of the courts or the power of the government. Why those who rail against the patriot act don't see an even more dangerous intrusion from Raich & Kelo is beyond my understanding.

Take a read around the internet. This decision has struck a chord. People of all political persuasions know instictively that it is wrong, but it will stand because neither politicians or the MSM will see it as anything but big government as usual. 

This looks like a winner for the democrats to me. The Scotus is 7-2 Republican appointments.  

The republicans take the blaim for all SCOTUS decisions.

If the Democrats are smart thay can use this.

The wedge is ours, lets give 'em a wedgie

I'm glad to see that several commenters are more concerned than Matt about protecting the individual against big companies and local corruption.

Here's how to take action to mitigate the effects of Kelo: join the Castle Coalition (CastleCoalition.org).  The usual disclaimer: my only affiliation is the modest $ I've contributed over the years.

Progressives who defend the Kelo decision are simply wrong on legal, ideological, and political grounds.
 
The previous standard for “public use” when forcing the transfer of property from one private owner to another required the state to demonstrate an actual harm to the public such as an oligopoly in land ownership or the often abused concept of “blight.”  The Supreme Court majority has now expanded the definition to include whatever a local government considers to be “economic development,” as the Court specifically declined to “second-guess” local authorities.  A right that Americans had under the Constitution no longer exists.
 
Ideologically, this should be a no-brainer.  This decision helps the wealthy and connected at the expense of the rest of us.  For proof, all you have to do is watch the behavior of local officials in any area targeted for developers. 
 
But it’s the politics that we need to focus on.  Constitutional or not, giving the state the power to force one out of one's home at the behest of a developer threatens individual freedom and will likely be viewed that way by the vast majority of Americans.  A backlash bigger than Roe v. Wade is coming that could undermine public support for the judicious use of eminent domain in the public interest.  Extremists who would like to reinterpret the compensation element of the "takings" clause to gut environmental and other regulations are already capitalizing on the Kelo decision.  Republicans can be expected to use this to their advantage in the coming Supreme Court nomination fight and 2006 elections. 

It is thus imperative that progressives put themselves at the head of a nation-wide movement to enact legislation that would restore the rights that homeowners enjoyed until last Thursday.  Progressives should demand that governments at all levels legally renounce the use of eminent domain to benefit private interests under cover of promoting economic development.  This is an opportunity that we should not concede to the other side.

As I posted elsewhere, this gives the takings extremists a wedge issue with which to advance their agenda.  But a ruling to prevent the forced transfer of property from one private citizen to another would in no way have effected the question of transfer from private to public use.

The private development of a pharmaceutical company, hotel, and condos - even though it will likely have some public benefit - is not "public use."

Unfortunately, the Supreme Court has been interpreting "public use" to mean "public benefit" (or "public purpose") for more than a century now.  From Justice Stevens's opinion (footnote references omitted):

Indeed, while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose." See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158-164 (1896). Thus, in a case upholding a mining company's use of an aerial bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court stressed "the inadequacy of use by the general public as a universal test." Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906).

We have repeatedly and consistently rejected that narrow test ever since.

I agree with MY here: Your quarrel is really not with the decision, but with the wording of the Constitution itself, or at the very least, with the interpretation of the Takings Clause wording that has prevailed for the last 100+ years.  (But do note that Stevens says that the more restrictive interpretation had over time proved to be unworkable.)  The way to limit the use of eminent domain for redevelopment projects is (a) to ride herd on local planning boards and town councils; and (b) to lobby the state legislatures to write restrictions on the proper use of eminent domain into state law.

Is there anyone outside of the majority of the legislature that someone can appeal to when they think they are being wrongfully forced to sell?   . . .   If you can't appeal to the judiciary branch, then you are completely beholden to a single branch of government.

No, access to the courts is not being cut off.  If you don't think you are being offered a fair price for your property, you can ask the court to settle that question.  If you think that the reason that your property is being condemned is not in conformity with the requirements of your state law or the Fifth Amendment to the US Constitution, you can go to court over that as well.

The only thing the Court has done with Kelo is to affirm that economic development is a valid public use (note that I said "affirm" -- this is not a new ruling), affirm that the particular piece of property in question need not be blighted (something they decided 50 years ago), and (the only new twist on it) that it does not require that the neighborhood as a whole be designated as blighted to be subject to a taking under eminent domain.