Thursday, June 23, 2005

The World Turned Upside Down

Do you remember me telling you that Justice Scalia once told me that the "worst" opinions came out in late June??? Well, that whacky "conservative" court is at it again. *

Kelo v. City of New London, June 23, 2005

Justice O'Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.



Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

***

Your home, too, can be taken and given to a shopping mall developer under the state's powers of eminent domain! Yessir! It's right there in the Constitution says Justice Stevens (who else).

Well actually, no its not. BUT, Remember those principles we ignored for purposes of the Commerce Clause a few weeks back? If we turn federalism on its head, then we can let the state ignore the Fifth Amendment! Hey guys! Watch THIS!!!!


Justice Stevens gave the Opinion of the Court


Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U. S. 598, 606-607 (1908) (noting that these needs were likely to vary depending on a State's "resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people"). For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.

BINGO! We've done it!
Move out, Grandma, Starbucks is moving in.

With all due respect Your Honors, this decision sucks.


*Hat tip, Portia.

5 comments:

portia said...

Let me get this straight: Growing pot in my backyard for personal consumption is interstate commerce, and transferring people's homes to private developers so they can build an office complex is public use. What the hell is going on here? If I didn't know better, I'd think those Justices were smoking some of the medical marijuana left over from Reich.

Cole Porter had it right:
The world has gone mad today,
and good's bad today,
and black's white today,
and day's night today....
Anything goes.

Pile On® said...

No one will abuse this power.....right?

This one could really have some disastrous ramifications.

Bad.

spd rdr said...

Bad. Bad. Bad.
Goofy too.
We need a freaking broom up there to clean out the goats.

spd rdr said...

I wish KJ wasn't at trial.
I could hot dogs over the steam coming out of his ears.
I like hot dogs.

A. Mallowner said...

I'm coming for you!

MUAHAHAHAHAHAHHAHAHA.

I have you now!

Wait! OMG! Who's that!

It's Wal-Mart!

What? I own this mall! You can't do this to me! I pay my taxes! Wadda ya mean, "blighted?"

SCOTUS? WTF is SCOTUS?