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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:14 PM
Original message
Eminent domain, 'partial birth abortion', & the circular firing squad
This week's Kelo decision from the USSC is just like court rulings against "partial birth abortion" laws, in four ways:

(1) Far more is at stake here than meets the eye;
(2) A narrow majority decision protected us against future far-right judicial activism;
(3) The right-wing noise machine turned up disinformation to the maximum level; and
(4) In blissful ignorance, many liberals joined a circular firing squad, this time with 5 USSC Justices in the middle.

The Kelo case pitted elected government against property, and elected government won. Whom would a victory for property have helped more, big corporations or ordinary working people?

Liberal opponents of the decision are siding with Rehnquist, Scalia, Thomas, and O'Connor. Might the five Justices in the majority know something very important that's a mystery to most Liberals?

Yes.

This case involved an attempt to re-interpret the Fifth Amendment in a way that would have affected far far more than local zoning. For almost 20 years now, the ultra-right has been plotting to roll back regulation of corporate power to pre-New-Deal levels using radical USSC distortions of the Fifth Amendment. Funded by millions of dollars from Scaife and other wingnut foundations, far-right think legal think tanks have been trying to cripple elected government's Fifth Amendment regulatory powers in favor of unlimited corporate power. Narrowly, they lost Kelo from a legal standpoint, but they are trying for--and apparently getting--a propaganda/disinformation victory.

Justice Kennedy's concurring opinion puts this week's decision in context: The ruling upholds the presumption that local eminent domain decisions serve a public purpose, and puts the burden on property owners to show otherwise. Clearly, corporations can corrupt governments. But had the court ruled the other way, in favor of expansive property rights under the Fifth Amendment, THAT could have benefited corporations even MORE.

The USSC circumscribed corporations' exercise of power through their ownership of property, which is arguably much more pervasive than their corruption of elected governments.

Had the decision gone the other way, environmental regulations, workplace safety, and even minimum wage laws could have been at much greater risk in the near future.

Here are links to the USSC decision and an article from The Nation on the nutty far-right "takings" doctrine, which is one USSC Justice away from becoming law.

------------------------------------------------------------------------------------------

From http://caselaw.lp.findlaw.com/scripts/printer_friendly....

"... KELO ... v. CITY OF NEW LONDON, CONNECTICUT...

Justice Kennedy, concurring....

This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U. S. Const., Amdt. 5., as long as it is "rationally related to a conceivable public purpose."... This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses...

A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits.... A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."

------------------------------------------------------------------------------------------

And, from http://are.berkeley.edu/courses/EEP131/Gieder.pdf :

"The Nation - October 15, 2001

The Right and US Trade Law: Invalidating the 20th Century, by William Greider

"...The Federalist Society organized a lawyers' forum with a provocative title--"Rolling Back the New Deal"--and its star attraction was Richard Epstein, law professor at the University of Chicago and intellectual lion of the right. Epstein's theory of "regulatory takings" galvanized the movement fifteen years ago when his book Takings: Private Property and the Power of Eminent Domain first appeared, describing an ingenious new constitutional interpretation designed to rein in modern government. Regulations, he argued, should be properly understood as "takings" under the Fifth Amendment ("...nor shall private property be taken for public purpose without just compensation"), so government must pay those businesses or individuals whose property value is in some way diminished by public actions....

"The New Deal is inconsistent with the principles of limited government and with the constitutional provisions designed to secure that end." In telephone conversation, I asked the professor for examples and he obliged with gusto. "Most of economic regulation is stupid.... What possible reason is there for regulating wages and hours?" Epstein said. "If my takings doctrine prevails, you have no minimum-wage laws. That's fine. You'd have an OSHA a tenth of the size. That's fine too...." His position ... would not invalidate the regulatory laws that legislatures enact. He would merely make the public pay for them. "We will allow the majority to have its way so long as it's willing to buy off its dissenters at a fair valuation," Epstein told the libertarian magazine Reason.

A host of conservative litigation groups have sprung up to argue Epstein's doctrine in court and taken a series of cases to the Supreme Court. So far, the Court's pro-takings decisions have dealt only with subsidiary questions and stopped short of fully embracing Epstein's claim...."
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Warren Stupidity Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:17 PM
Response to Original message
1. ouch
you just got me to change my mind. Thanks.
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Jokerman Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:23 PM
Response to Original message
2. You make some good points. n/t
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K-W Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:25 PM
Response to Original message
3. Thank you for posting this.
Edited on Fri Jun-24-05 03:26 PM by K-W
We need to eliminate corporate control over government decisions, not the regulatory power of government.
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welshTerrier2 Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:43 PM
Response to Reply #3
4. excellent !!
Edited on Fri Jun-24-05 04:05 PM by welshTerrier2
that hits at the core of the decision ...

there is a very legitimate bias on DU against corporations and the abuses of big money in our governmental processes ... to be highly suspicious that governments will be bought by corporate interests that will then turn around to push around "the little people" and drive them from their homes is more than understandable ...

what we have now is a very corrupted system that is fraught with abuses ...

what we need is a system through which government can rightfully regain the trust of the citizens ... government is not inherently evil ... we, as citizens, have not been adequately vigilant to protect our democracy ... we take our institutions for granted and then are surprised when they become exploited by those with money and power ... that's the change that needs to be made ...

we need governments of, for and by the people; we need not tie the hands of governments from doing their best to serve those they represent ... restricting governments from exercising their best judgment as to what is in the best interests of a community is not a wise limitation ... and we certainly should not automatically conclude that any ED seizure that results in benefits to private companies or individuals precludes the public interest being served ... business, when properly regulated, is an essential component of our society ... the tragedy is that business has not been properly regulated at all and our democracy and the quality of governments have been put at very real risk ...

bribery, in the form of legalized bribery of government officials, must be terminated ... the corporate state must be destroyed so that big money is no longer able to retain its stranglehold on government ... with government acting in the best interests of all its citizens, empowering government to be able to do the right thing makes plenty of sense ... it explains why the liberals on the court voted as they did and why the selfish party's conservatives voted as they did ...

your post hit the nail on the head ...
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 04:01 PM
Response to Reply #4
7. Self-delete--replied to the wrong post
Edited on Fri Jun-24-05 04:06 PM by AirAmFan
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welshTerrier2 Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 04:07 PM
Response to Reply #7
9. oh good ...
man, i was reading and re-reading what i wrote and what you wrote and couldn't make any sense of it ...

what the hell is this guy saying to me, i tried to figure out ...

thanks for making the correction !!
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 04:16 PM
Response to Reply #4
10. Great post! You're pointing out that the best the USSC can do
to help perpetuate legitimate government is preserve laws that empower legitimate government.

It's up to US to see to it that elected governments are not corrupted.
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acmejack Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 07:33 AM
Response to Reply #4
23. I concur!
We must put a swift end to the unbridled influence of corporate interests in lobbying. Legalized bribery by any other name remains bribery, the allegiance of the legislators needs to be to their constituency, not their donors-a fact apparently lost upon most in Congress.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 11:49 PM
Response to Reply #3
13. Very well put: "We need to eliminate corporate control over
government decisions, not the regulatory power of government."
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MadHound Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:47 PM
Response to Original message
5. Sorry, but this doesn't fly friend
The Fifth Amendment doesn't have a damn thing to do with regulation of commerce, that would be Article I, section 8. Epstein's arguement has not been validated in the courts, nor does it seem like it will be.

This wasn't a case of circumscribng corporate power, quite the opposite, it was an expansion of corporate power, giving them the ability to legally bend a locality's ED laws to their own liking, and trampling all over the property rights of the individual.

By putting the onis on property owners to defend their property rights, you are putting individuals into an unfair fight, pitting their meagre monetary and legal resources against those of both the state and corporations. It isn't even the tyranny of the majority friend, it is the tyranny of the monied and well connected, something that our founding fathers were steadfastly against, as indicated by the Fifth Amendment.

Sorry, but this ruling is abysmal, as is Epstein's crackpot theories, and any justification I've seen for this travesty of justice. You may be in favor of this now, but let's see how fast you change your tune when Wally World is knocking on your door, and the city is offering you a "fair market" price that for your home that is twenty percent less than the free market price.

This just smacks of defending the indefensible simply because the ruling was handed down by so called "liberal" justices. Not good form friend, not at all. Unjust is unjust, no matter which side is dealing it out.
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K-W Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 03:58 PM
Response to Reply #5
6. This is about property redistribution.
Edited on Fri Jun-24-05 04:00 PM by K-W
If America is to be controlled by corporations, then yes, of course we should be destroying the governments power to regulate everything because the government isnt legitimate, but that is an entirely seperate issue.

The constitution assumes that we have a legitimate government, and thus as long as due process and compensation are followed that government can sieze property. You are completely fabricating the rule that government cannot use this power to take land and redistribute it. And seriously, it is the right that wants the power of government to redistribute property gone, not the left.

BTW, this has nothing to do with the commerce clause, this is about regulation of property not commerce.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 04:04 PM
Response to Reply #5
8. You MIGHT be right about the true meaning of the Constitution. But
Edited on Fri Jun-24-05 04:10 PM by AirAmFan
that does not matter in the real world. What matters in the real world is what a majority of USSC Justices will sign onto. Many progressive Constitutional lawyers are quite concerned about Epstein's movement. Some of them are quoted in the link I provided in the OP ( http://are.berkeley.edu/courses/EEP131/Gieder.pdf ). They say we are one USSC appointment away from radical reinterpretation of the Fifth Amendment a la Epstein.

This week, the same 5-4 majority that protects us against the demise of Roe v. Wade appears to have held the line against Epstein's attack on the Fifth.
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MadHound Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 04:45 PM
Response to Reply #8
11. What I'm saying
Is that Epstein can attack the Fifth all he wants to, it still isn't going to make a damn bit of differene in how government regulates corporation, because those powers are given by Article I, section 8. Epstein can attack the Fifth all he wants, but it won't overturn Article I.

Epstein is having a Constitutional disconnect, one that we shouldn't engage in also. He is relying on Locke and natural right to underpin his shaky arguement, and is throwing two hundred years of jurisprudence out the window. He talks of intrepreting the Constitution in terms of "plain language", yet his own definitions are twisted and perverse. For example, his definition of "taking" means diminished, yet nowhere in our law, Constitution, nor even the study of coloquial eighteenth century American English can you come close to that definition.

Yes, Epstein is the darling of the Federalists right now, but his theories are crackpot, with very shaky legal underpinnings. He will never get his case through a court whole and intact, much less the Supreme Court. And if these five justices ruled as they did simply as some sort of pre-emptive strike against this foolishness, then they were suckered into giving away all of our property rights to corporate America, along with our right of redress.

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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-24-05 05:13 PM
Response to Reply #11
12. Epstein HIMSELF wrote an amicus curiae brief in the Kelo
case, for the Cato Institute. That's how important this eminent domain case was for his nutty but nearly-successful strike at government regulation of corporate behavior.

The reason is that Kelo provided the most direct opportunity to reinterpret the "public use" clause of the Fifth Amendment since 1954. Fortunately, a narrow non-ideological majority held the line against Epstein's reinterpretation--this time.

There's a link to the text of Epstein's brief in this case about one screenful down from the top at http://www.theempirejournal.com/624051_property_rights_... .
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AngryAmish Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 12:02 AM
Response to Original message
14. KELO is bad law and bad public policy
Basically, the 5th amendment says the gov't can take private property for a public good. The previous takings cases said the gov't can take a property (even your car) and then sell it if there is a clear public benefit.

The standard of review on constitutional issues can go 3 ways, rational basis (anything that can conceivably be taken into account), heightened scrutiny (better be a good reason and the court will look at your reason) and strict scrutiny (REALLY high burden, almost never flies).

The Supremes could easily have said that a taking for resale to private outfits is worthy of heightened scrutiny, because the taking clause said "for public benefit" and selling to private outfit may or may not fit in that definition. They did not. And it WILL create mischief.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 12:25 AM
Response to Reply #14
15. This is the most important Fifth Amendment takings case since 1954
Edited on Sat Jun-25-05 12:30 AM by AirAmFan
Far more is at stake here than just fair-market-value seizures of property by elected local governments.

It looks as if you may have read my excerpt from Kennedy's opinion on the appropriate standard of scrutiny in regulatory cases, whether they involve elected government powers under the Fifth Amendment, Due Process or Equal Protection clauses. But did you take a look at my second link?

Ultra-right foundations and legal think tanks have spent decades and millions of dollars to get their nutty "takings" doctrine to the USSC. They have three main goals: to redefine "public purpose", to increase the standard of scrutiny for government regulation, and to redefine "taking" to include "partial" as well as complete seizure of private property.

By a one-Justice margin, they failed to move their agenda on any of their three fronts this week. But they'll be back, that's for sure. Meantime, uninformed progressives are giving them a big propaganda victory.

Ask yourself, "If I'm solidly on the side of Scalia, Rehnquist, Thomas, the Cato Institute, and the National Taxpayers' Union, might there be something I don't understand involved?"

The answer appears to be, "YES!"
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AngryAmish Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 12:44 AM
Response to Reply #15
16. New Deal ain't gonna get rolled back
Basically, the medical marijuana case a few weeks back ensured that. Everyone was whah-whah-ing the decision, but that ensured a broad reading of the commerce clause. Net - good for us. Elections change and medical marijuana gets passed next time we own congress. Stare decises means that reading of the commerce clause will not change for a generation.

So lets talk about the right wing "revolution" in takings/property rights matters. The S. Carolina beach case (case names escape me) said the gov't can't put a complete brick on everything you can do to a piece of land or else it is a taking and the gov't has to buy your land. Then last year they had the Lake Tahoe case where Lake Tahoe put a 2 year ban on development to assess thing. Supremes said that was OK. Land use is still valid. Stare decises means I'll be dead before that happens.

However, the instant matter means that the gov't can target any piece of property (ie abortion clinic) buy it, sell it (to starbucks, because lattes generate taxes, medical procedure don't, especially when owned by non-profits) and there is no constitutional impediment.

And keep it to yourself about things I don't understand. It was snide. I don't understand women, I don't understand why Dusty keeps letting Patterson lead off, but I have a pretty good grasp on the ins and outs of the takings issue. Not everything that our enemies support is automatically bad.



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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 12:55 AM
Response to Reply #16
17. Many progressive constitutional scholars don't share your confidence
Edited on Sat Jun-25-05 12:59 AM by AirAmFan
that the right-wing "takings" doctrine won't soon be accepted by the USSC. In fact, the link I supplied in the OP at berkeley.edu quotes some as saying we may be just one USSC appointment away from that day.

What should I believe? Their careful reasoning or your vague assurances?
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AngryAmish Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 01:02 AM
Response to Reply #17
19. Have you noticed that the pdf is from 2001?
BEFORE the medical marijuana case went down and the Lake Tahoe case went down? Over time, the property rights/takings jurisprudence has changed.

And I am still waiting for my apology.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 01:09 AM
Response to Reply #19
20. I understand there is a very similar article in the April 17th 2005
Sunday NY Times Magazine, called "The Unregulated Offensive".

And "apologize" for what?
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AngryAmish Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 01:15 AM
Response to Reply #20
21. This
'Ask yourself, "If I'm solidly on the side of Scalia, Rehnquist, Thomas, the Cato Institute, and the National Taxpayers' Union, might there be something I don't understand involved?"

The answer appears to be, "YES!"'


I am aware of the agenda, I am aware it is not flying in this arena.

The NYT magazine article came out before the medical marijuana decision. Again, SCOTUS decisions change things. This is one of them.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:52 AM
Response to Reply #21
30. See the amicus curiae brief EPSTEIN HIMSELF wrote in THIS CASE
at the link I supplied in post #12 (ie, http://www.theempirejournal.com/624051_property_rights_... ).

I'll apologize when you've convinced me what I said is not true. That would require convincing me, among other things, that:

(1) You'd already read Epstein's brief IN THIS CASE;

(2) Epstein's brief, which supports the position Rehnquist, Scalia, Thomas, and O'Connor took, has NOTHING to do with Epstein's long-term agenda to roll back the New Deal;

(3) You knew that Kelo's case was ginned up by the far-right Institute for Justice (see post #29 below); and

(4) Just like Epstein, the Institute for Justice is wasting its time and money in this case.
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AngryAmish Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 10:27 AM
Response to Reply #30
31. You know, they lost all their property rights cases this term
Edited on Sat Jun-25-05 10:28 AM by AngryAmish
The Hawaii gas station rent case - found not to be a taking.

Medical marijuana - found to be in the stream of commerce even if not bought or sold and grown on your own land.

Kelo - gov't has broad taking power.

There was an agenda and it lost. Of course the case was ginned up. Vast majority of cases that make it up to the Supreme Court are ginned up by various interest groups. That is the way the game is played.

You seem to fear Epstein. However, his ideas are not advancing and have been put to bed by the Supremes for a generation. He is a typical U of C libertarian type. Neither party trusts libertarians (because a libertarian influenced property rights law would outlaw environmental protection etc. and libertarian drug and sex law gives Repubs the willies.).

And what I want an apology for was the personal attack. We can debate the rest of it like gentlemen. But do not call me stupid or uninformed just because I disagree with you.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 10:54 AM
Response to Reply #31
35. How does the Raich (medical marijuana) decision "put to bed"
Epstein's takings doctrine?

Raich asserts the supremacy of Federal economic regulatory power under I.8.3 of the Constitution.

But could not a Court rule in the future that such permissible regulation also is a "taking", requiring that the regulatee be compensated? It's the compensation that Epstein seeks, to inhibit the extent of regulation, not bar it entirely. And wouldn't a different outcome in the Kelo case have put Epstein closer to that goal? You said it yourself: "Kelo - govt has broad taking power".

And I do not engage in personal attacks. I did NOT call you 'stupid'.
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NorthernSpy Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 11:00 AM
Response to Reply #35
36. the Raich case was an opportunity to restore to the commerce clause...
... its original meaning. That has long been a goal of many, including many on the political right (but NOT only them).

And they failed! Which is unfortunate, since commerce clause abuse underlies a lot of horrible, ultra-reactionary things, such as the War on Drugs.
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phish420 Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:36 PM
Response to Reply #15
37. This is what boggles my mind
I mean this ruling is the opposite of what I would expect, right down the line...but I still just dont see what youre saying I guess...Im trying to see a silver lining in this, but I guess I keep missing it. I guess I dont see how reinterpretation of these terms was at stake in this ruling and how the opposite ruling would have been any worse than this. Believe me - I know something is very fishy when those justices agree with me and Stevens and the like disagree. I guess Im gonna have to read the opinions in full to figure out what they are up to.
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Ragnar Donating Member (184 posts) Send PM | Profile | Ignore Sat Jun-25-05 01:01 AM
Response to Original message
18. You seem to be misguided.
Just because the dissenters on the court were the most conservative jusrists does not make Kelo a good decision. What the Court did was allow for a new use of emminent domain - a private and corporate use. So long as a public benefit can be found, and the apporpriate governmental agency is persuaded, one private entity will be able to take land against the will of the current owners.

And that is beside the point that the ownership of private property is essential to the functioning of our economy, and this is a serious blow to private property rights.
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NewYorkerfromMass Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 07:29 AM
Response to Reply #18
22. You wrongly assume private and public benefits are exclusive
This is the mistake all you knee jerk reactionaries are making, and you are wrong. Eminent domain for public uses has ALWAYS had private beneficiaries. Whatever the reason a government authority needs to enact eminent domain- be it a public or private enterprise, the court has rightly preserved that power. If there is a greater public good to be achieved and the government deems it worthy, then it should be free to achieve that end. Government is there for all of us collectively, and should be protecting the greater public good. Whether or not, (and how much) private entities may benefit from a taking is not the issue- for if an ultimate public benefit is achieved, then the taking was justified. Most importantly, government's power to do so must NOT be compromised.

Let me add that this issue is being used, and will continue to be exploited, to divide liberals and progressives. The dividers are the conservatives and other enemies of the left. who wish to limit the reach an influence of government. They are the anti "Great Society" people- the haters of the "New Deal"- they are in short our enemies. I must say I have never seen such divisiveness here on a non-religious issue, and the trolls and other dividers are taking full advantage.

Be warned- Souter, Stevens, Breyer, and Ginsberg have ALWAYS sided on the side of rightousness. Those that would tell you otherwise are wrong.
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cornermouse Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 08:37 AM
Response to Reply #22
24. I know this is nosy, but I have to ask.
Do you own your home or rent?
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CTLawGuy Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:36 AM
Response to Reply #22
27. thinking
"oh, if Breyer, Souter, and Stevens said it, it must be right!" is not a smart idea.

This decision says there are essentially no limits on eminent domain power. Because how hard can it be to find an "economic development" benefit in anything?

Even building a Wal Mart could theoretically have an economic benefit.

How would you like your house turned into a Wal Mart?

this decision is just plain wrong.
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NewYorkerfromMass Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-05 11:39 AM
Response to Reply #27
63. good idea
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Ragnar Donating Member (184 posts) Send PM | Profile | Ignore Sun Jun-26-05 03:26 PM
Response to Reply #22
41. First off, I never made any such assumption.
Tearing down 100 homes to build a minimall has some public benefits. Sure. The reason to do it is promarily one of private interests though. Emminent domain is a right the government should only claim with great need, and for purely public interests. This decision allows the line between business and government to become further blurred.

And calling me a reactionary...that's a new one. I've been called liberal, socialist, pinko, communist, marxist, radical and stupid...but reactionary is a new one for me. Thanks for the laugh.

And let's be rational...who's making the knee jerk decision, the guy who sides with the three justices he least admires or the guy who sides with the four he believes are "always" righteous....I know who the jerk here is, and we can leave your knees out of it.
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CTLawGuy Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:24 AM
Response to Original message
25. sorry, you are missing the picture
as a poster said above, the takings clause has nothing to do with minimum wage laws or environmental regulations.

Those things were endangered early last century when challenged on the same grounds which rest our privacy rights, the 14th amendment.

Conservatives believed that the 14th amendment guaranteed a "liberty of contract", which the state could not interfere with. that was the basis for stymying the worker protectiond of thr New Deal until the Court finally rejected the docrtine in the late 30's.

What this ruling says is that the government can take your property and give it to a private, for-profit corporation, as long as it can be justified by "economic development" goals. Economic development is so vague and expansive a term, that in my opinion it gives government the unlimited power to take people's property.

The Court should have ruled that the meaning of "public use" has limits on it. It should have a direct benefit to the public as well as have some public control - ie a park, a highway, a school. A drug research facility owned by Pfizer does not have a public use.

This ruling is hardly a blow to corporate power. Corporations now have the power to buy off politicians and get your house and land for essentially any reason, as long as it makes a profit - because profits are "economic development".

the framers intended to give government the right to take land when the public needed it, ie schools and roads, but not for whatever bullshit reason government can come up with.
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Hugin Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:31 AM
Response to Reply #25
26. This decision is a direct attack on programs like the "Nature Conservancy"
Where land is bought and held from development by
private entities.

Now, it can be taken due to the fact... "That land
was just sitting there not making money for anybody."
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CTLawGuy Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:37 AM
Response to Reply #26
28. yeah
it's ridiculous.

the Court needs to be more responsible.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 09:46 AM
Response to Original message
29. Kelo was chosen as 'a sympathetic victim' by the Scaife-funded
Edited on Sat Jun-25-05 10:02 AM by AirAmFan
'Institute for Justice'. THEY ginned up this case, according to a recent NY Times article archived at truthout:

From http://www.truthout.org/cgi-bin/artman/exec/view.cgi/38... :

"During the current term, the Supreme Court has heard three cases involving questions of economic liberty that, according to Greve, represent the most significant tests in a decade of the power of the Constitution in Exile movement. Kelo v. New London, which was argued before the court in February, concerned Susette Kelo, a woman who sued the city of New London, Conn., after it used its power of eminent domain to seize 90 acres of property, including her house. The city planned to turn the parcel over to a private developer in order to increase the tax base and revitalize the city. Chip Mellor's organization, the Institute for Justice, represented Kelo, whom the institute's lawyers had sought out because she seemed like a sympathetic victim...."

And, from http://courtinginfluence.net/sources_print.php :

"Institute for Justice
'Founded in 1991, the ... nation's only libertarian public interest law firm ... pursue cutting-edge litigation in the courts of law AND IN THE COURT OF PUBLIC OPINION .... Funders include: David H Koch Charitable Trust, Charles G Koch Charitable Foundation, JM Foundation, Olin Foundation, Sarah Scaife Foundation, Smith Richardson Foundation, Lynde and Harry Bradley Foundation."
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NorthernSpy Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-25-05 10:32 AM
Response to Reply #29
32. so what!
I'm just sorry that the Dark Side offered a helping hand before we did. That's what rankles. If the Olinoids were the only people who were willing to help me save my home, I'd get cozy with them too, for the duration. Any port in a storm.

I'm fed up with the sophistries and the apologetics. I will NOT in ANY way support, rationalize, or attempt to justify the shit that's going down in New London. Working class people are getting tossed out of their homes so that some asshole corporation can build waterside condos for the affluent. Those who find that sort of thing tolerable can all go straight to hell, and they can take their pseudoliberal paternalism and their fucked up notions about "the public interest" with them.


:nuke:
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 02:57 PM
Response to Reply #32
38. Don't you worry the TIMING of Kelo--maybe just before RESIGNATION
by Rehnquist--is not accidental? Suzette Kelo's case was cherry-picked by the far-right, Scaife-funded Institute for Justice to force 5 non-ideological Justices into an unpopular decision.

Then, the very same week Chief Justice Rehnquist schedules the final Kelo decision, rumors are floated that he will resign? Come on.

Do you think Republicans might just be PLAYING you and the millions of Democrats who agree with you, to be able to slide another YOUNG reactionary into the USSC with far less opposition than that new Bush appointment would face otherwise?

IMHO, the Kelo decision is just like court decisions that nixed "partial birth abortion" laws": The far right ginned up an intentional probable loss for themselves that would be very unpopular, to help spread disinformation in furtherance of a bigger right-wing hidden agenda.
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 03:17 PM
Response to Reply #38
40. I don't worry a bit
because if Bush nominates somebody who opposes this ruling, that's the right person for the job!
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 03:40 PM
Response to Reply #40
43. Do you know who Chip Mellor and Richard Epstein are? Because,
Edited on Sun Jun-26-05 03:41 PM by AirAmFan
if they only knew some of your previous posts at DU, you'd REALLY have made their day with this one.

Don't you want to hedge your bet on the Smirking Chimp even a LITTLE?

Have you read the links I've posted here, or don't you feel you need to?
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 05:11 PM
Response to Reply #43
45. This issue is too important to me
and outweighs all other issues combined as far as I'm concerned.
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batsauce Donating Member (88 posts) Send PM | Profile | Ignore Sat Jun-25-05 10:41 AM
Response to Original message
33. This a dark defeat for the homeowners , but the Corp got its land.
Edited on Sat Jun-25-05 11:01 AM by batsauce
What happened here is that a number of poor home-owners were evicted from their homes so that a large corporation could use the land. Supposedly, this is supposed to be part of larger re-vitalization project, but so far, the only thing going forward is the Corporate land grab.

I suppose the connection of "environmental regulations, workplace safety, and even minimum wage laws" is possible, but if someone was kicking me out of home my family had lived in for generations, I don't think I would take it that way.

I think that small towns are notoriously susceptible to corporate bribing and bullying, and that is why the homeowners in Kelo no longer have their homes, but the Corp does have its building.
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batsauce Donating Member (88 posts) Send PM | Profile | Ignore Sat Jun-25-05 10:52 AM
Response to Original message
34. But I do not understand why Liberal Justices would vote this way.
Here is the breakdown.
The justices are categorized according to:
http://www.dkosopedia.com/index.php/Supreme_Court_of_th...

FOR
John Paul Stevens Liberal Ford
David H. Souter Liberal Bush I
Anthony Kennedy Center-right Reagan
Stephen G. Breyer Liberal Clinton
Ruth Bader Ginsburg Liberal Clinton

Against
Rehnquist Conservative Nixon
Scalia Conservative Reagan
Thomas Conservative Bush I
O'Connor Conservative Reagan
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 03:09 PM
Response to Original message
39. With all due respect, that's bullshit
Edited on Sun Jun-26-05 03:14 PM by Walt Starr
Sorry, the five idiots who voted in favor of this decision redefined the term "public use" to be "anything any local government deems will benefit the public even if it doesn't".

Edited to add: Any Bush nominee to the court who opposes Kelo wins my support. I WILL offer my support in a written letter mailed to both Dick Durbin and Barack Obama should that nominee state Kelo is bad law and should be overturned.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 03:26 PM
Response to Reply #39
42. No, IMHO that's the Rethug SPIN on Kelo you are repeating
Did you look at Justice Kennedy's concurring opinion? See the first link in the original post, and also see posts #29, 38, and 15. IMHO, you may be responding EXACTLY the way the Scaife-funded ultras who ginned up this decision want you to, and at the worst possible time (just before Rove chooses a replacement for Rehnquist, who fully agrees with your current position.
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 05:12 PM
Response to Reply #42
46. I've read the decision a couple of times
O'Connor obliterates the nonsense spewed by Kennedy.
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stilpist Donating Member (335 posts) Send PM | Profile | Ignore Sun Jun-26-05 04:32 PM
Response to Original message
44. Kick! 'cause I still see DUers bemoaning the decision ...
... as was I 'til I read this. Thanks AirAmFan.

:kick:
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 05:16 PM
Response to Reply #44
47. I've read the decision. It's bad law and sets a bad precedent.
It's bullshit and I will support any nominee who comes out against it.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 06:45 PM
Response to Reply #47
48. No--Kelo sets NO precedent. That's what the Scalia minority wanted
to do--set a precedent that economic development was no "public use" under the Fifth Amendment.

That would further the Epstein scheme, and incidentally would snuff out every city's aspirations for redevelopment.

Kelo upholds a long-established expansive view of regulatory power for local, state, and Federal government. If it does anything new, it should encourage propertyowners to keep a close eye on their politicians, and not let greedy right-wingers grab hold of the powerful levers of government.
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 06:48 PM
Response to Reply #48
49. OH BULLSHIT!
Edited on Sun Jun-26-05 06:50 PM by Walt Starr
It sets a major precedent. For the first time ever it set the nebulous standard of "public good" even if there is no public good out of the thing. Claiming there will be a larger tax base does not make one materialize, but the claim is enough to invoke eminent domain.

The five idiots who pushed this stupid ruling gutted every recourse of the people under the takings clause.

It's a bullshit decision and I would support impeachment of all five morons who voted in favor of it.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 07:18 PM
Response to Reply #49
51. Kelo merely reaffirms previous state and local eminent domain
takings for economic reasons in the Berman case (51 years ago) and the Midkiff case (20-some years ago). Read the O'Connor or Thomas opinions at the link I cited in the OP. Or, better yet, read the Epstein amicus curiae brief (at the link I cited in #12) from which the two minority "opinions" were cribbed. Epstein is the ultimate source of the Scaife-funded disinformation for which you appear to have fallen so completely.
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 07:20 PM
Response to Reply #51
52. WRONG, Kelo takes it a step further and ends private property rights
altogether.

I've read the entire thing a couple of times. You are wrong.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 07:33 PM
Response to Reply #52
55. Well, read it again. What am I to believe, what it says, or
what you say it says?

From http://caselaw.lp.findlaw.com/scripts/printer_friendly.... :

"(c) Petitioners' proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function.... See, e.g., Berman, 348 U. S., at 24. Also rejected is petitioners' argument that for takings of this kind the Court should require a "reasonable certainty" that the expected public benefits will actually accrue. Such a rule would represent an even greater departure from the Court's precedent. E.g., Midkiff, 467 U. S., at 242. The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties' legal rights to be established before new construction can commence. The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. Berman, 348 U. S., at 26. Pp. 13-20."
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 08:08 PM
Response to Reply #55
56. Then where's the test?
How does the court test if there will actually be an improvement? How does the court test if there is actually public good?

Bad decision with a bad precendent, and I support any court nominee who thinks the same way.
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 08:20 PM
Response to Reply #56
57. No test is required--there is a long-established PRESUMPTION
that regulation is valid if it is "rationally related" to a Constitutionally-mandated goal of government. See the snippet of Kennedy's opinion in the OP, AngryAmish's summary of constitutional review standards in #14, and the paragraph I quoted in #55.
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 09:47 PM
Response to Reply #57
58. I disagree completely.
With no test, you have opened it up to the whim of graft, greed, and corruption.

Again, I oppose this decision with every fiber of my being and will support any SCOTUS nominee who opposes it 100%.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Jun-26-05 09:55 PM
Response to Reply #58
59. Deleted message
Message removed by moderator. Click here to review the message board rules.
 
Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 09:56 PM
Response to Reply #59
60. So now you resort to personal attacks
how...typical.

:eyes:
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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 10:12 PM
Response to Reply #60
61. Moi? Just how have I defamed you? You said (in #40),
Edited on Sun Jun-26-05 10:21 PM by AirAmFan
"if Bush nominates somebody who opposes this ruling, that's the right person for the job!"Never mind that a young reactionary appointed and confirmed now would mean the end of Roe v. Wade and perhaps ultimate triumph for Epstein's plan to gut the government's power to regulate corporate behavior.I apologize if you took what I said some other way. I thought I was repeating what you said.

Oh, and to repost content that got deleted for some reason, I wanted to clarify what I meant by "no test". As confirmed in Kelo, cities' use of eminent domain for decades has been presumed to bear some "rational relation" to a broadly-defined "public use". They have no test to pass, but a holdout homeowner (such as a handful of the 115 families affected by the New Londodn development plan) DO have to pass a test to get their eminent domaion case into court. They must prove a negative--that there is NO RATIONAL BASIS for a sale forced by the city.
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Walt Starr Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-27-05 05:46 AM
Response to Reply #61
62. Content was deleted because it was a personal attack
Edited on Mon Jun-27-05 05:49 AM by Walt Starr
Nothing more needs to be said. Those who resort to ad hominems generally lack an argument.

And a "test" that requires the homeowner to prove a negative is no test. It is a fallacy and an abomination because you can NEVER prove a negative. That's something one learns in high school debate.
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Eric J in MN Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 07:08 PM
Response to Original message
50. I disagree. I believe Kelo will produce a backlash which
will hurt ordinary people.

It means that property rights extremists suddenly seem like they know what they're talking about.

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AirAmFan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 07:26 PM
Response to Reply #50
53. Only if progressives keep repeating Rethug talking points, and only
if ordinary people fail to educate themselves about the issues and continute to abdicate political power to greedy Republicans.

If decisions like Kelo keep affirming the fundamental regulatory powers of government , the Republicans only win when they succeed in suppressing the votes of ordinary people. We still have a chance "next time".

But if wacky ultra-right USSC decisions take away the presumption that government regulation is valid, then Republicans win for all time. (See the excerpt from Kennedy's opinion in the OP).
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Eric J in MN Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-26-05 07:32 PM
Response to Reply #53
54. Not every law is valid.
Edited on Sun Jun-26-05 07:33 PM by Eric J in MN
It's one of the main purposes of the US Supreme Court to strike down unconstitutional laws.

They should have used that power to stop people's houses from being confiscated so Pfizer could build in an office building.
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