Property Rights, Kelo v. New London

[muon2]

The decision was not sound IMO, but I disagree with Thomas' dissent. I find O'Connor's dissent (signed by all four dissenters) a much more rational position. It recognizes the role of a common carrier as providing a public use even if as a private company. It also recognizes the appropriate use of eminent domain to eliminate blight, which may or may not result in the blighted property ending in the possession of a private entity. The elimination of blight can act to improve the health, safety, and welfare of the public and can also qualify as a public use. I do not choose to confuse the use and owner as I feel Thomas does. The majority supported not just immediate well-defined public uses, but also undefined potential uses that causes its error.

[muon2]

It also recognizes the appropriate use of eminent domain to eliminate blight, which may or may not result in the blighted property ending in the possession of a private entity. The elimination of blight can act to improve the health, safety, and welfare of the public and can also qualify as a public use.

I disagree with this view. The Fifth Amendment does not authorize taking for the "public welfare," but only taking for "public use." The latter is a much more limited term; it implies that the property must actually be used or employed by the public, not a private corporation. The mere fact that the public might obtain an incidental benefit is not relevant.

As Thomas argues, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." Nuisance law is entirely distinct from the eminent domain power. It is entirely inappropriate for the government to use the eminent domain power to eliminate blight.

Then government is put squarely into a contradiction. To promote the general welfare is explicit in the preamble, and the protection of health, safety and welfare has been a long-standing duty of the government. A blighted property can be clearly detrimental to health, safety and welfare and thus to the general welfare. Enjoining governemntal action against such pro[ety creates a situation where the government is both expected to act and forbidden to act. I do not believe that is the intent, nor do more than a small minority of legal scholars.

[muon2]

Then government is put squarely into a contradiction. To promote the general welfare is explicit in the preamble, and the protection of health, safety and welfare has been a long-standing duty of the government. A blighted property can be clearly detrimental to health, safety and welfare and thus to the general welfare. Enjoining governemntal action against such pro[ety creates a situation where the government is both expected to act and forbidden to act.

I never said that the government may not take action against usage of property that is detrimental to the public health. There certainly are measures the government may take. However, using the power of eminent domain is not one of them.

To repeat the Clarence Thomas quotation, "The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law." As the common law authorities (including Blackstone) make clear, the power of eminent domain is distinct from nuisance law. The former, which may be used at the government's whim, extends to those cases where the public is taking property for its own use. The latter, which requires indictment and trial, extends to those cases where an individual is doing something that adversely affects the public welfare.

Nuisance law may have had some ability to rectify detrimental properties in the past. Nuisance laws can correct problems with properties where the owner has a willingness to comply. The worst cases feature owners who are willing to flaunt their ability to beat the system. For instance, they might play a shell game of ownership, tie up fines in court indefinitely, or even paty the fines and say "so what?" For these cases there is no last resort in nuisance law for the government to abate the nuisance, and eminent domain is the true last resort. In most cases, where it must be applied, the knowledge that eminent domain exists as a power is sufficient to cause a negligent property owner to abate their nuisance or negotiate a fair sale.

[muon2]

Nuisance law may have had some ability to rectify detrimental properties in the past. Nuisance laws can correct problems with properties where the owner has a willingness to comply. The worst cases feature owners who are willing to flaunt their ability to beat the system. For instance, they might play a shell game of ownership, tie up fines in court indefinitely, or even paty the fines and say "so what?" For these cases there is no last resort in nuisance law for the government to abate the nuisance, and eminent domain is the true last resort.

I respectfully disagree. The state merely needs to amend the nuisance laws, so that the punishment includes forfeiture of the property in question.

The state may not make that punishment for nuisance laws - it would itself be a taking. The courts have narrowly constrained when property may be forfeited as punishment for an offence, and correctly so, IMO.

Currently 0 to 23.

I cannot remember any poll ever being this one sided in forum history (Including all the frivolous and rediculous ones). It's decisions like this that show that the court isn't just left of the mainstream, it's left of the left wing.

I think the poll should have included the three basic views on this case: The majority, the lone dissent of Thomas, and the consensus dissent by O'Connor, Rehnquist, Scalia, and Thomas. Note that Thomas concurred with O'Connor's dissent, but none of the other conservative justices would sign Thomas' opinion. I find very little comment about the O'Connor dissent which shows a much better understanding of the web of rights and constraints that act on local units of government.

[muon2]

The state may not make that punishment for nuisance laws - it would itself be a taking.

The takings clause does not extend to fines or forfeitures that punish crimes, just as it does not extend to taxes.

I don't know about NJ, but in IL violations of nuisance ordinances are not criminal offenses. They are prosecuted by the local unit of government, not by the State's Attorney. Local units of government may place a lien against property for the fines owed, but that doesn't extend to the taking of the property.

[muon2]

I don't know about NJ, but in IL violations of nuisance ordinances are not criminal offenses. They are prosecuted by the local unit of government, not by the State's Attorney. Local units of government may place a lien against property for the fines owed, but that doesn't extend to the taking of the property.

That certainly may be true. But just because one particular state's nuisance laws do not entail the elimination of blight, it does not follow that the eminent domain power may be used for that purpose. To conclude otherwise seems to involve a result-based approach to constitutional interpretation. The text of the Fifth Amendment appears to be quite clear: the taking must be for "public use"; in other words, the property taken must be used by the public.

Here I disagree with your reversal of the word "use" from noun to a verb. The word has a great many dictionary meaning now is it did in the eighteenth century. You have narrowly selected one. I could equally well couter that in property law the noun "use" includes enjoyment or benefit of a property. The health of the public is certainly a benefit. This meaning can include more than the direct public occupation of the land. As earlier, I note that even Scalia did not subscribe to such a narrow construction of "use" as you propose.