Growing up in Detroit, I – like all youth in Detroit – was well-acquainted with the criminal element. There were the Seven Mile Sconies, the West Wood Hoods, Pony Down, and the world-renowned Young Boys Incorporated running the streets. The Big Four also rolled through the ‘hood in that dark blue Ford LTD, busting heads from time to time. When you grow up in the urban jungle you quickly learn which animals are predators, which animals are prey, and where you fit in the food chain.
(Shit hits the fan beneath the fold)
It’s a bad thing to be on the south side of the food chain – I learned not to wear jewelry the hard way. I was on the swim team of Henry Ford High School, and one afternoon after swim practice I was heading to the bus stop with another guy on the swim team. It was the 80’s so I had my little rope chain on – nothing gaudy like Run-DMC‘s chains or Mr. T’s mobile Fort Knox – just a little ¼” rope chain. Next thing I know, I hear from behind me, “Yo nigga, check that shit in!” It was three big guys in NY Yankees jackets. Pony Down. At that moment we had a choice – give up the chains, try to fight, or try to run. Seeing how they were already up on us, running wasn’t an option – they’d have grabbed us as soon as we turned to run. Fighting wasn’t an option either – the two of us may have weighed 250 pounds combined, while each of them were in the 250 range. Our only option was to check our shit in.
Technically, this is known as strong-arm robbery, but today it is known as Eminent Domain. The Supreme Court has ruled that the government can take your property whenever it feels like it in order to “foster economic development.” In other words, if Wal*Mart wants to bulldoze your neighborhood in order to put up yet another SuperWallyWorld and you and your neighbors give the Waltons the finger, the city/county/state government can step in and tell you, “Yo nigga, check that shit in!” Nissan wants to build a factory on the 40 acres that your great-grandparents actually got and passed down through the generations? “Check that shit in, nigga!” If some developer wants to build condos where you home currently sits, “You gotta check that shit in, nigga!” This is now the law of the land – if you have something that corporate America wants, and you refuse to sell/lease/give it to them at the price that they dictate, then prepare to check your shit in.
Nigga.
Skin color doesn’t matter any more – it’s all about the green, and if you don’t have it then you’ve got to check your shit in, nigga. That’s today’s Black & White. Does the discussion about Bush’s judicial appointments seem a little more relevant now? Are municipal and county elections a bit more relevant now? Can we please get our act together now, before we have to check all of our shit in?
Over the course of yesterday I had seen several articles, diaries, blogs, etc., commenting on the Supreme Court ruling. None of it was quite hitting home. But yours sure has…very clearly stated. Thanks! (OH SHIT!!)
Who’s for this anyway? My daughter asked me that last night. I told her that, for sure, the ‘wingers have to be dead set against it, them being property rights nuts and all.
Maybe we can join up with the ‘wingers on this one.
The only people I can think of who like it are those cheesy real estate developers.
and check that Oscar out — because whataboutbob is right. You are the one man who’s called this hijack what it really is.
And we all need to check out who agrees with us: O’Connor? . . . wellll, maybe . . . but Rehnquist, Thomas and “Big Tony” Scalia?
Like Conway Twitty used to say on the radio down in my ‘hood, “Thank about it, darlin.” Thank about it real hard.
Thank you.
Thanks for bringing it over here.
How, actually, did the vote go down? On what premise did they give for their decision? I think they are all nuts if you ask me…
…came down on the side of the developers. John Paul Stevens (Gerald Ford appointee) wrote opinion for majority, joined by Ginsberg (Clinton), Souter (Bush 1), Kennedy (Reagan) and Breyer (Clinton). O’Connor (Reagan) wrote a scathing dissent joined by Scalia (Reagan), Rehnquist (Nixon), and Thomas (Bush 1).
The premise of the decision is that eminent domain seizure of private property for “public use” can be interpreted to include seizures for economic development that would benefit the general public, even if developers are private entities. The dissenters would limit eminent domain seizures for “public use” to public works projects like freeways, parks, public utilities, etc.
As far as political philosophy goes, this is an example in which liberals have placed far too much trust in government as the guardian of the commonwealth’s interests.
They had to make the decision based on the law, not based on hypothetical situation that might come up in the future. States are free to change the laws as is the federal government. But the supreme court doesn’t have that option.
The decision might be distressing but it is logical and really the only one they could have made.
True, although the better decision would have been not to review it at all – let the Appellate Court ruling stand instead of reinforcing and amplifying the Appellate Court decision.
…of the role the Supreme Court plays in our government.
Cases that reach the Supreme Court involve situations in which the facts are not in dispute but there are genuine differences in opinion as to how the law is applied to the facts presented. When the Supreme Court renders an opinion as to how the law is applied to the facts of that case, the effect of the decision is not limited to that particular case. The Supreme Court decision sets precedent that is binding on all future “hypothetical cases” with a similar fact pattern that may arise in days or years to come. A “hypothetical situation” in which a municipality wished to seize private property from poor people for the purpose of building a Walmart would be much easier in the aftermath of this case. It is not difficult to foresee future seizures analogous to this Walmart hypothetical or even more analogous to the position of the parties in the case just decided. This case severely limits judicial review of the government’s action in future seizures.
Moreover, states and the federal government are not free to “change the laws” unless such laws are within the bounds of the Constitution. And the courts are free to create new law. Judges do it routinely. This case clearly expanded the bounds under which the government can operate. There were alternatives other than what the majority handed down. I suggest you read up before weighing in on the logic of the case.
Wow, that is a terrific explanation of the Supreme Court’s role, and the likely impact of this decision. Very clarifying. I just wonder, Professor Kingsfield, if it could have been offered without the snark. I don’t think Teresa suspected she was going to be graded on that post.
misunderstanding.
Sorry, your explanation may appeal to the emotions everyone is expressing in this matter, but logic and the law are not based on whether people think something bad will happen in the future.
The fact that so many people on liberal message boards are as moved by emotion and a lack of understanding of the law as people on the right are doesn’t surprise me sadly enough.
Despite his condescension, I have to agree with Grand Poobah on this. The law is absolutely about preventing bad things from happening in the future, and legal decisions have a tremendous impact on society. I’m not an attorney, so I will not weigh in on peculiarities of this case, but several people, smarter than I, have. On it’s face, a legal decision that reduces oversight of eminent domain cases spells disaster. It puts communities all over the country even more at the mercy of corporate interests. Corporations always argue that they are improving the community by providing jobs and revitalizing areas, only to act like viruses destroying those communities from the inside out. It pains me that I agree with Antonin Scalia, of all people, but this is a bad decision, giving corprotions more power, and the people less. I don’t see, on any level, how that is a good thing. And I don’t buy that it was the only appropriate decision based on the law. No case goes all the way to the Supreme Court because the law is cut and dried, but because it isn’t.
Like many people, you are reacting viscerally to the decision without reading the reasoning in the opinions. Unless you think the four more liberal judges have suddenly become idiots, then perhaps you ought to reflect on why ALL of them would come to this decision.
They are following stare decisis as far as how the Courts have previously ruled. In a sense they are NOT expanding the power of eminent domain, but rather clarifying it. They rightly note that legislatures can and have limited the power of local governments to exercise ED in the way it was being applied in New London.
BTW I always get fascinated by those who place such insistence on property, rights to which do not exist without a government to enforce them. Absent the social contract that government represents, we would be in a the state of nature which Hobbes describes of the war of all against all with
We will hear the emphasis on life, liberty and property, which gives us a real opening. Those three are a partial quotation of what Locke listed as natural rights. What is missing from the list that Locke included is Health!
Returning to the decision. Property rights are not absolute. There is also no bright line between what is a public purpose and that which is private. Going back to the power of states to condemn lands for railroad right-of-way, the land involved was given to FOR-PROFIT organizations because of the perceived public benefit for the larger community (if not for all) in having the railroad built. That private persons or organizations profited waas not seen as undermining the basic public purpose. Similarly in the New London case, the area to be condemned is to include open space in an area that severely lacks it and space of a public museum. The improvement of the overall area, which was quite run down, was seen as a great benefit to the larger community. Thus based on precedents going far back, even though land was being given to private developers as part of the overall deal, and they would profit from it, did not in any way diminish the existence of a valid public purpose.
They are following stare decisis as far as how the Courts have previously ruled.
The Supreme Court does not consider cases (grant certiorari) when there is clear precedent as to how the case should be determined and the facts of the controversy fall within those precedents. The controversy in this case as applies to Fifth Amendment rights had never been considered by the Court in the past. Those arguing that this case establishes no new law are not correct in their analysis.
They rightly note that legislatures can and have limited the power of local governments to exercise ED in the way it was being applied in New London.
True enough, however, when the state refuses to protect the Constitutional rights of its citizens, the role of the courts is to order the state to enforce those rights. Woe be Americans when we have to rely solely on state legislatures to limit unlawful acts by municipalities.
BTW I always get fascinated by those who place such insistence on property, rights to which do not exist without a government to enforce them. Absent the social contract that government represents, we would be in a the state of nature which Hobbes describes of the war of all against all with
For centuries, it has been the role of the courts to limit government’s power over a person’s private property. “A man’s home is his castle.” Moreover, many of our property rights are rooted in Anglo-Saxon common law which have transcended governments.
Returning to the decision. Property rights are not absolute. There is also no bright line between what is a public purpose and that which is private.
When no bright lines exist is exactly when we need judicial review. One reason we have courts is because laws as they apply to factual situations often lead to subjective interpretations as to enforcement. This opinion gives broad power to the legislature to enact laws that allow for seizure of property without the scrutiny of the court to determine whether enforcement of such law is within the boundaries of the Constitution.
Concerning your example of the railroads, yes, private property was seized and easements were granted to railroad barons, however, lots of things were done under the color of the law in the 19th century that would not pass Constitutional muster today.
That is also how I see it, but you stated it much better than I.
The SCOTUS clarified the constitution on this topic.
I feel very mixed about this. The dKos diary that made the rec list yesterday approving of the result was discussing this decision in regards to property rights extremists who oppose even environmental protection and demand compensation for any environmental policy that would impact their property value. They were fended off, which is good for conservation and saving the environment, but have we traded one slippery slope for another?
Eminent Domain deals with three separate issues.
I believe the environmental cases you are thinking of dealt with the first issue — i.e. is it a “taking” to say you can’t do X on your property because X would cause some environmental harm. IIRC, the Court ruled that such a situation is not a taking. If it is not a taking, you don’t even reach the issue of whether the taking was for a public use, of whether the compensation was just. The current Kelo decision does not, regardless of the outcome, affect these earlier decisions. The Kelo decision deals with “what is a public use.”
One of the tactics of environmental groups like The Sierra Club and Ducks Unlimited is to purchase property so that the group owns it, and it can remain in a pristine condition. Does the Kelo decision have an impact on this tactic? That remains to be seen.
Except it works both ways. Developers can now exercise eminent domain against private non-profits like the Nature Conservancy if they can successfully argue that developing a refuge will increase tax revenues — an argument which is, after all, a slam-dunk.
I read the decision and the dissenting opinions, in their entirety. I believe Justice O’Connor is quite correct in that the majority reading of the public use clause renders it so vague as to be meaningless and therefore the decision as handed down does not clarify the clause as much as it nullifies it.
The correct decision, in light of the wording of the Fifth Amendment, would have been to overturn the previous decisions rather than to finish the demolition of individual property rights.
Justice O’Connor was also right on the money when she noted that the decision will disproportionately affect those who have less money and influence with local government than large corporate developers. We can mumble all we want about the theoretical basis of the majority ruling, but in terms of the practical effects of the decision, which the court ignores at our peril, individual homeowners and small business owners are about to find out that not only are property rights not absolute, they are for sale to the highest bidder.
In every eminent domain action I have been privy to, the victims are almost invariably poor or lower middle class or members of an ethnic minority, and the just compensation clause is always made a mockery of. No one ever get fair market value for their property, much less the overinflated appraised value of the property that has been the basis for their property taxes in the years preceding. Interstate highways are not routed through rich white neighborhoods; they go through poor minority neighborhoods. Moreover, the planners of interstate highways have no particular incentive to damage local businesses, however indifferent they may be; WalMart and Target, on the other hand, have every incentive to demolish their smaller competition, and thanks to the Supreme Court, they can add eminent domain to their already considerable arsenal of anticompetitive practices.
It is true, property rights are not absolute. This is particularly true of real property, the quantity of which is fixed for all time. We can seize property that has been abandoned or has been allowed to deteriorate to the point of threatening public safety. We can condemn property needed for the construction of dams and highways. What we have not been able to do, prior to now, is to enable corporations to simply purchase the property rights of other people against their will. In a very real sense, this is an abolition of real property rights.
In some of the threads on this subject I have seen on other sites, some people have been positively overjoyed because they view this as a victory in the effort to exercise eminent domain over private lands needed as wildlife refuges. While I am sympathetic to that goal, what is more likely to happen is that non-profit organizations like the Nature Conservancy will find that developers can now condemn their private wildlife refuges to make room for stores, parking lots, and tract housing. This is not a victory for anyone but modern-day robber barons.
So yeah, check that shit in.
That would be my peeps in Prospect Height and Fort Greene — two bustling and awesome neighborhoods, both having been hauled up from the throes of crackdom and crime within the last 15 years. And they did it ALL without the “help” of eminent domain asswipes.
Of course, so now the land gets a little more desirable, and some developers come in and decent, “Holy Shit! What this neighborhood really needs a basketball arena!” A basketball arena. Is THIS for the community good?
I guaran-fucken-tee you not. But it sure don’t matter, because now my friends are being forced from their homes so that Bruce Fucking Ratner can get richer.
I tell you — this decision will just make it easier for your precious neighborhood to go down like mine is. And all that “tax revenue” they talk about — you’ll never fucking see a dime.
let’s nationalize the oil companies in the interest of national security!
Incredible way of putting it in words. Thank you so much!!! I’m keeping this page up some my husband can read it. Fantastic!
Living in fear of casinoes taking precedent of my home.
I have a question about ED and the confirmation of Janice Rogers Brown to the US Circuit Court of Appeals. First, some background. When the SCOTUS decision came down yesterday, a bell went off in my head about recent mentions of property rights cases and Judge Brown. I found the case, and here it is, with a link to PFAW, where I found it:
“San Remo Hotel L.P. v, City and County of San Francisco, 41 P.3d 87 (Cal. 2002).
In San Remo, the California Supreme Court upheld a city ordinance providing that if a hotel owner wants to eliminate residential hotel units and convert to tourist units, it must contribute to helping provide housing for the low income, elderly, and disabled tenants displaced as a result. Brown vigorously dissented, claiming that as a result of the ruling, “private property, already an endangered species in California, is entirely extinct in San Francisco.” Id. At 120. She asserted that the ordinance constituted an unconstitutional “taking” of private property by government without compensation, resulting in “theft” and “[t]urning a democracy into a kleptocracy.” Id. at 128. Every other justice on the court disagreed.”
http://www.pfaw.org/pfaw/general/default.aspx?oid=14177
One of the often cited arguments against Brown’s confirmation to the Federal Court, as I understand it (and please know that this entire subject is new to me and I’m really just feeling my way here), is that in cases involving property rights, she consistently rules for corporations and against the citizenry. In the case cited above, Brown considered the hotel as “private property,” which it is. And so is any business, I am guessing. And any corporation?
So, my questions:
Maybe I’m naive about this stuff, but I am always trying to find some sort of “bright side” to these things. I really hope there is one.
Here’s my take on the answers to your excellent questions:
IMO, “just compensation” should be the assessed value of the property. That would be just compensation for years of paying property taxes on ridiculous assessments well above any reasonable market value, anyway.
I disagree, just compensation should be the fair market value plus inconvienence expenses(i.e., moving, temp housing ect.). In many areas of the country the assessed value is far below the actual “real” market value. If my house were taken today at the assessed value I would loose roughly $100K and the reason is because of warped tax laws.
Also, you mention ridiculous assessments that are well above “real” value. Well there are ways to fight that but unfortunately most people don’t.