Thursday, August 04, 2005

Chewable tidbits (but not recommended for human consumption)

It was a mad-dash after a month of procrastinating.

I threw together a hodgepodge of background info on the Kelo v. City of New London case--in English: the case in Connecticut that resulted in a community being uprooted by the city to make room for a number of business ventures with the justification that it was for the public good. The research was needed so I could give a talk on the subject at the local Whatcom County meetup/discussion group. I was surprises that I got as much as I did--and the discussion ended up being a good one--although I only got through about half of the info I brought.

Now... Instead of letting it go to waste, I'm going to record a brief and abridged (explained) version here for posterity and your perusal. Don't blame me if you find it somewhat boring. I showed the handout to a friend I ran into after the meeting and the question I heard as she looked blankly at the sheet was something like "how do you come up with this stuff?"

Economic development takings – A little background
By Mark Reimers

Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (public use clause)


The interpretation of the public use clause is the contentious issue at the heart of Kelo v. City of New London. The struggle of nearly every court decision is to define and objectify something or leave it completely alone. The term "public use" it immediately stands out in a court of law as a vague term that will need clarification. The Kelo case was just the last in a string of cases that have tried to give "public use" a broad meaning, almost changing the clause to something like this: "we can take anything we want and give it to anyone we want as long as we pay for it and it holds the slightest hint of improving something about our community."

What now has received extra attention is the fact that the land in the Kelo case is being taken to be sold to private developers. Even thought it is blatant infringement on the property owner's rights, the Supreme Court found a way to get it done. How? Partly by citing other examples. Yeah this has been going on for a while...

Cases of interest:

Hawaii Housing Authority v. Midkiff
One of the first precedents of explicit takings for economic development. (see link - more light was shed on this case at the meeting)

Kelo v. City of New London
Justice Stevens’ majority opinion excerpt:
  • In Hawaii Housing Authority v. Midkiff, (1984), the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit's view that it was ‘a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B solely for B's private use and benefit.’”
  • “…a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.”

Poletown Neighborhood Council v. City of Detroit

Kristina Dalman (attorney from Chicago) on the Kelo case: excerpt from an article in the Brownfield News .

  • “For decades, many courts (including the Connecticut Supreme Court in Kelo ) relied on the position taken by the Michigan Supreme Court in 1981 in Poletown Neighborhood Council v. City of Detroit. In the Poletown case, the Michigan Supreme Court upheld the City of Detroit’s condemnation of a thriving neighborhood in Detroit to make way for the construction of a new General Motors plant to help reinvigorate the city’s depressed economic condition. The Court determined that the taking of land for economic development purposes was a valid “public use” under the Fifth Amendment. In a stunning turn of events in August 2004, however, the Michigan Supreme Court reversed its position on the issue, declaring in a subsequent case involving the condemnation of land surrounding Detroit Metro Airport for economic redevelopment (Wayne County v. Hathcock), that its prior decision in Poletown was wrong and that the taking of private property in furtherance of economic development was unconstitutional.”
  • Note: the Connecticut Supreme Court cited this case after it had been finally denounced in the Hathcock case.


CATO Institute: “Robin Hood in Reverse: The Case against Economic Development Takings
by Ilya Somin

Written just prior to the Supreme Court Kelo decision, I appreciate the CATO/libertarian perspective on this issue. I’m not done reading the 24 page document but so far it has proved very informative.


“Both the Fifth Amendment to the federal Constitution and nearly all state constitutions contain a ‘public use clause.’ By implication, such clauses prohibit government from taking private property, even when compensation is paid to the owner, except for a ‘public use.’ But for some time the U.S. Supreme Court and many state courts have allowed that restriction on the condemnation power to atrophy.”

“For more than 20 years, Poletown stood as both the most infamous symbol of eminent domain abuse and a precedent justifying nearly unlimited power to condemn private property. As one scholar of the subject put it, ‘To many observers of differing political viewpoints, the Poletown case was a poster child for excessive condemnation.’ Poletown held that condemnations transferring property from one private party to another satisfied the ‘public use’ requirement even if the only claimed public benefit was that of “bolster-[ing] the economy.” While it was not the first decision upholding so-called ‘economic development’ takings, Poletown was by far the most widely publicized and notorious. Its notoriety stemmed from the massive scale and seeming callousness of Detroit’s use of eminent domain: destroying an entire neighborhood and condemning the homes of 4,200 people, as well as numerous businesses, churches, and schools, so the land could be transferred to General Motors for the construction of a new factory. Aside from the moral and humanitarian concerns at issue, Poletown raised the fear that if ‘economic development’ could justify such massive dislocation, it could be used to rationalize almost any condemnation that benefited a private business in a way that might ‘bolster the economy.’”

<< Home 3 Comments:
Blogger Gloria said...

Sorry Mark that was a little over my head. Don't take that wrong. A LOT of things go over my head.

4:32 PM, August 07, 2005  
Blogger Mark R said...

I'm glad it was over your head because it just proves you are normal. I didn't expect to get any comments on it. But...

Emily--you said you were going to try to post a serious comment about it. I'm waiting.

9:38 PM, August 07, 2005  
Blogger Gloria said...

Oh boy! finally someone says I'm normal. I should mark this on the calendar. *laughing*

7:51 PM, August 09, 2005  

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