I still don’t agree that public “use” means “benefit” or “purpose,” like you pointed out in your first post on the subject. I don’t know that I ever will. What’s your thinking on how it’s logically sound?

Posted by Chris Brown on 28 June 2005 @ 10pm

nor be deprived of life, liberty, or property, without due process of law;

If depriving someone of property for the purpose of giving it to someone else so that tax revenues increase is considered “due process of law,” might I not make the case for euthanising people who are on Welfare? Yes, that’s tongue-in-cheek, but indicative of how property rights, listed along with liberty and life in the fifth amendment, have become discounted.

nor shall private property be taken for public use

I have to agree with Chris. If a private company is given the property, the public isn’t using the property.

The words “for public use” are there. Anything that effectively removes them has to be an improper interpretation. The interpretation that the tax revenue generated by the property is a public use of the property is absurd. Under that logic, all property can be shuffled around at the whim of a simple majority of government officials (in some cases, only 3 people) if they can make a case that the new use for each property will provide a greater benefit in the form of tax dollars. All private property can benefit the public in some way, so this new interpretation of “use” effectively creates property communism.

The only people who are exempt are those properties that provide so much tax revenue that nothing else could possible exceed it. I doubt Microsoft is too worried about the decision.

Posted by Mark J on 29 June 2005 @ 4pm

I agree, Mark, that the logical extreme of this decision is bad. It’s a path that we don’t want to go down. But “public use” has been defined as “public purpose,” notably in Hawaii Housing Authority v. Midkiff and Berman v. Parker. Each established that economic development is, in fact, public use. The precedent was there. Given that, the court just had to consider of whether the takings were “reasonably necessary” and for “reasonably foreseeable needs.” The court believed that, in the case of one of the land parcels in question, both tests were met.

The majority writes:

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

They concede that “this is not a case in which the City is planning to open the condemned land…to use by the general public,” and that the lessees won’t be common carriers, but point out that Midkiff established that the “court long ago rejected any literal requirement that condemned property be put into use for the general public.” They go on to point out that the courts viewed “use by the public” in a literal sense in the 1800s, but this eroded in the time since.

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.”

This was most notable established in 1906’s Strickley v. Highland Boy Gold Mining Company.

As you can see, the SCOTUS ruling here is the culmination of a century of rulings slowly eroding the concept of “public use.” This is why I say that the ruling is internally consistent, though not externally.

Posted by Waldo Jaquith on 30 June 2005 @ 12am

Ah, now I see what you were getting at. I jumped straight from the Constitution to Kelo, which I guess is too far; strange how the interpretation of one word (is ‘use’ defined as ‘purpose’?) can shift the entire mood of a country. But now knowing the other court cases, I can see that this was a long time in the making.

Posted by Chris on 30 June 2005 @ 10am

Waldo, ah… I wasn’t quite grasping what you meant by “internally consistent.”

But when it comes down to a choice between internal consistency (i.e. other rulings) vs. the actual Constitution, shouldn’t the Constitution trump? You can have bad rulings that seem to erode the concept of “public use,” but that doesn’t change the words of the Constitution. The Constitution is what it is. You change it by changing it… not by ignoring it bit by bit over the course of 200 years.

See also: states can’t allow medical marijuana because growing a patch in your backyard for your own personal needs has been deemed “interstate commerce” by the SCOTUS.

So basically, Constitutional consistency is dead.

I agree, Mark, that the logical extreme of this decision is bad. It’s a path that we don’t want to go down.

I’d argue that it’s not just the extreme that’s bad. It’s the whole path. And we’re already going down it.

Just hours after the Supreme Court’s decision Thursday, Freeport officials began efforts to seize waterfront property from two seafood companies as part of an $8 million marina development, according to a report by Chronicle correspondent Thayer Evans.

The action was accompanied by the usual economic development blather. The marina will lure $60 million worth of hotels, restaurants and shops, create hundreds of jobs and revitalize downtown.

“It’s all dependent on the marina,” Lee Cameron, the city’s economic development director, told the Chronicle. “Without the marina, (the hotels) aren’t interested. With the marina, (the hotels) think it’s a home run.”

Therein lies the flawed logic that too often creeps into economic development programs: Success is assumed. Build the marina and the hotels will be a “home run.”

And a good closing quote:

It’s a strange day in America when we rely on state laws to clarify the U.S. Constitution.

If the SCOTUS is free to ignore the Constitution (e.g. allowing private development to count as “public use” and rending the “public use” requirement impotent), what good is the Constitution? And even if the SCOTUS has to be “internally consistent,” all that means is that Constitutional perversion has to be done gradually, so that no one decision appears to be completely responsible.

Posted by Mark J on 1 July 2005 @ 4am

But when it comes down to a choice between internal consistency (i.e. other rulings) vs. the actual Constitution, shouldn’t the Constitution trump?

I include the Constitution when I say “internally consistent.” In fact, I should explain that phrase for those playing at home. :)

When taking surveys, there are two crucial metrics: internal and external consistency. Internal consistency asks “Did I count right?” External consistency asks “Can these numbers be extrapolated to reflect the whole of the population that I have sampled?”

I don’t see Kelo as being inconsistent with the Constitution, because I see the great strength of the Constitution is that it is a living document. Stare decisis (”let the decision stand”), in which we rely on precedent, is a premise of this nation’s (and, in fact, much of the world’s) legal system, and there’s no reason that I can summon for why that ought to be any different with the SCOTUS.

Imagine that 90% of the nation believed that children should be forced to recite the Lord’s Prayer in school. If the SCOTUS struck down such a requirement, such a ruling would be internally consistent (with the constitution and with precedent), but externally inconsistent (with the public opinion).

Posted by Waldo Jaquith on 1 July 2005 @ 10am