I know that Martha did a round-up of opinions last Friday on Kelo v. New London. Found this CJR piece from yesterday that also puts it in perspective.
…In 1954, the court held in Berman v. Parker that Washington, D.C. could condemn a department store in fine condition for a larger economic development program in which some of the land would be leased or sold to private parties. In Hawaii Housing Authority v. Midkiff, decided over twenty years ago, the court supported this precedent by upholding Hawaii's decision to enact a land distribution program to combat the "social and economic evils of land oligopoly." This unanimous decision upheld the court's prior understanding of public use as public benefit, and the court's "deference to legislative judgments in the field."
…The traditional uses of eminent domain…have a far more sordid history than their economic development counterparts. Thousands of tenants and homeowners were displaced by Robert Moses and his Cross Bronx Expressway. And small neighborhoods all over the United States -- many of them vibrant ones -- were cleared in the 1950's in order to build badly needed but poorly planned public housing towers that failed to realize their initial promise.
Whether the projects in question are strictly public or for the public benefit is not the question editorialists should be asking. What they should be asking is, "Is this a good use of the land in question?" And, "Are current residents treated fairly and given some form of due process?"
And while seemingly expanding the scope of what constitutes public use, in Kelo the court also left open the opportunity for states to regulate public takings more rigorously. The majority wrote that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." That deference to a state legislature's superior ability to address complex matters can hardly be taken as an unbridled expansion of the definition of eminent domain.
A fun story about Kelo is making the rounds: A private developer is seeking to use this very law to build a hotel on Souter's land.
On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.
The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America.
And a somewhat more serious photo essay by James Lileks on a neighborhood seized by eminent domain.
There's an ugly edge to that 'joke', as Eric Muller points out.
Posted by: Martha Bridegam at June 28, 2005 10:27 PMFeh.
The only "ugly edge" is Muller's last comment about it being "scary times to be a federal judge." While that's possibly true, only an oversensitive paranoid would see the hotel plan as threatening our legal system.
Taking delight in the application of a viscerally unjust ruling to the judges who made it is a far cry from mob rule or Columbian-style judicial threats, despite the current political rhetoric about "activist judges" and such. I stand by my pleasure, and in fact think it manifestly unfair that the justices ruling in Dred Scott and Plessy v. Ferguson never even had a chance of being subject to the legal consequences of their rulings.
We're not even talking about selective enforcement of the law here — while I might like to see Justice Scalia's tomato garden uprooted since it interferes with interstate commerce, I recognize that that would be a breakdown in the rule of law. The "Just Desserts Café" isn't like that at all: if use of eminent domain to transfer property from A to B are fair game, and if this sort of thing can happen anywhere, it's entirely reasonable that the majority in Kelo be in the same peril of being that unfortunate A as I am.
Posted by: Ben Brumfield at June 29, 2005 06:58 AMI've responded on Eric's comment boards. Suspect my not-a-lawyerness is showing, though.
Posted by: Ben Brumfield at June 29, 2005 08:58 AM