Re: Kelo won't be reversed

Adam H. Kerman <ahk@chinet.com> wrote:

BTR1701 <atropos@mac.com> wrote:

Mar 26, 2025 at 11:41:03 PM PDT, Adam H. Kerman <ahk@chinet.com>:

Note that I'm in the minority on Usenet in never condemning Stevens'
decision in Kelo v. City of New London Connecticut. Also, the Connecticut
constitution has a takings clause:

SEC. 11. The property of no person shall be taken for public
use, without just compensation therefor.

"Public use" doesn't mean "land the public will use" but that the stated
public purpose in state law fulfilled the constitutional requirement.

Worst SCOTUS decision in modern history.

That lets state legislatures off the hook who wrote those unjust laws in
the first place.

Government action chooses winners and losers, like a public road
being built (perhaps the right of way was acquired by taking) so that
a particular parcel of land may be developed or directing building
improvements at one public school but not another.

In New London, the development was never built.

The Institute for Justice represented a developer in a case in New York
in which the facts were even more egregious than in Kelo.

Bowers v. Oneida County Industrial Development Agency

Petition for certiorari denied on March 24, 2025

They intended to develop land across from a new hospital for a medical
office building. A competing developer had purchased a nearby parcel to
develop their own medical office building and wanted this parcel for a
parking lot so they had the government take it.

47 states have amended their eminent domain statutes to make it more
difficult to take property that doesn't directly benefit the public.
That's what Stevens said was the right way to handle the issue.

Why? Unlike issues like abortion, the federal Constitution directly
addresses this issue in Amendment V. This isn't something that's properly
the domain of the states.

The takings clause doesn't address all related issues such as eminent
domain. It doesn't address rights in property at all although the due
process clause in Amendment V does to a small extent. There's no "negative
taking" whether or not it's implied, that is, a taking is prohibited if
it's not for public use.

I keep forgetting to finish my thought here. I'm sure BTR1701 will still
tell me I'm wrong.

The takings clause of the Fifth Amendment

nor shall private property be taken for public use, without just
compensation

In several Supreme Court cases, the power of eminent domain was not
created by the Constitution but was an "attribute of sovereignty" and
"appertains to every independent government." Boom Co. v. Patterson
(1879). The takings clause is a limitation on sovereignty because
property owners won't bear the full burden of the taking, and are
entitled to just compensation. But it doesn't limit the power to "public
use".

Here are two law professors taking the position that "not for public use
even with just compensation" is unconstitutional, but don't cite a case.

https://constitutioncenter.org/the-constitution/articles/amendment-v/clauses/634