Monday, June 27, 2005

Kelo v. City of New London

I have now been able to read the entire opinion of Kelo v. City of New London. I continue to think that it was a horrible decision. Not only because of the justifications that the court used, but because of the real world application of the ruling. In the opinion, the court finds that a local municipalities need to effectively coordinate "economic development" falls within the scope of "public purpose."

Because the plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

While, the need for areas to pursue economic redevelopment is crucial for towns and states to rejuvenate blighted and dilapidated areas, there was no showing that the area in question was of that nature. In fact, the court allowed the town to find the area to be "sufficiently distressed."

Additionally, I fail to see how the court can find that public use can be expansive enough to encompass "tax base." Regardless of trying to figure out original intent of the founders, expanding public use for the purposes of building a larger tax base over the interest of individual rights is far broader than the constitution should ever be read.

The court seems to recognize that fact that this form of taking benefits private individuals, but gives it little weight in determining the line between public and private taking.

Quite simply, the government's pursuit of a public purpose will often benefit individual private parties.

But the justification from a prior case, Midkiff, was in regards to the ability for lessees who were previously unable to purchase their homes.

The court also seemed to side step the issue of private parties to be able to manipulate the local zoning boards.

It is further argued that without a bright line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such and unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the thetical case posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.

I find this logic to be wholly arbitrary and without thought. Without a bright line rule to differentiate public and private use, the court has allowed municipalities to determine what is and what is not "integrated development." Who is to say that a single home traded for a single business is not, or cannot be integrated development. While this distinction may seem more discernable in larger cities, it is not as discernable in smaller municipalities. It also shifts the burden from the municipalities to prove what is pubic use on to the individual owner. I believe that the constitutional mandate of the 5th Amendment would place the burden on the city, not the individual. This is a costly burden that will hinder many individuals from asserting whatever property rights they have left.

The Court also seems to put efficiency over property rights.

... a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.

While this is true, there is still no justification for efficiency to be paramount over our 5th Amendment rights. The court would have recognized that the rights we enjoy under the Bill of Rights is not there to hinder economic development, but to protect one of the most fundamental principals we base our judicial system on - the right to be secure in our possessions from government intrusion. Efficiency for economic redevelopment is secondary, not premier to our individual rights.

The majority ends its opinion with.

As the submission of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution.

This is where the court completely drops the ball. This is where the court is formulating its authority in a "constructionist" manner and disregarding the actually real world implications of the ruling. This is where the court should have step outside of its use of precedent and interpretation for its own analysis of the disparate impact it would have on the most vulnerable property owners, the poorer, the older, and the lower middle class. The Court declines to "second guess" the cities "considered judgment," when it should be the court declining to give deference to the city. The Court should have been requiring the city meet a higher level of scrutiny, proof of desperate needs, before a city is allowed to impose its will upon the rights of individual citizens.

I take back my earlier comment that this may be a small win for Federalism. This is a big loss for the 5th Amendment.

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