President Bush Blocks Federal Eminent Domain Abuses

[D. Scarlatti]

Originally Posted by Beth

I think it would have been best to go through the state level.

That's essentially what a majority of the Court held in Kelo. They said that not only was the Court not in the best position to evaluate what local municipalities determined to be "public use," but also that states, not the federal government, have the power to determine their own eminent domain regulations:

We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution.

Kelo v. City of New London, 125 S. Ct. 2655, 2668 (2005).

I've never quite understood the outrage over Kelo, especially from so-called conservatives.

[ms_ann_thrope]

"This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution."

That kind of sums up why I'm not a fan of Kelo: I would have liked for SCOTUS to have been 'activist judges' and made an ethos-driven "it's just not right!" decision condemning the type of private-to-public-to-private taking proposed in New London. In other words, using the same kind of reasoning that helped Kennedy determine that there was a fundamental right to dignity and respect for sexual privacy within the sanctity of the home in Lawrence. (Lawrence being, like, my favorite case in years. It was just the right decision to make, damn it!)

For me, the idea of the home as sacred is, well, sacred. A white picket fence draws the line between The Man and me. Within the walls of my home I'm free to get my freak on, read 'dangerous' books, pick my nose, throw darts at pictures of the president, walk around naked, etc. To allow the state to wrest that from me for the financial benefit of another private party (even if the action will ultimately provide some community benefits) is an outrage. The state needs to build a highway through my living room? I can accept that. The state needs to take my living room so that they can turn it over to some asshat developer who is going to put in a Starbucks and some condos? Hell to the no!

* Bear in mind, of course, that ms_ann_thrope is a B- scholar of Constitutional Law.

[D. Scarlatti]

I hear ya, ms. For me it's just fun to point out the principle in a LionsDen thread, that principle being that the Bill of Rights, in the context of federalism, is a floor, not a ceiling.

I think it's hilarious that on the one hand LionsDen applauds the California Supreme Court for extending freedom of speech for teen preachers into privately-owned shopping malls but condemns the Connecticut Supreme Court for operating according to precisely the same principle: local, as opposed to federal, control.

Either condemn both state supreme courts for "judicial activism" or applaud them both for enforcing "states' rights."

[ManM]

Originally Posted by ms_ann_thrope

The state needs to build a highway through my living room? I can accept that. The state needs to take my living room so that they can turn it over to some asshat developer who is going to put in a Starbucks and some condos? Hell to the no!

How do you differentiate between the two? Arguably, the Starbucks and some condos are more beneficial to the community as a whole.