From Radley Balko, April’s Reason:
On January 17, the U.S. Supreme Court refused to hear the case of Bart Didden, an entrepreneur in Port Chester, New York. It thus let stand one of the more egregious abuses of eminent domain authority since the court’s infamous Kelo v. New London case of 2005, which upheld the government’s right to seize property from one private party and give it to another in the name of economic development.
In 2003 Bart Didden set out to build a CVS drugstore on property he owned in Port Chester, New York. Unfortunately, a developer hired by the town had other plans for Didden’s land. The developer wanted to put up a Walgreens drugstore on the same property, so he demanded that Didden either pay $800,000 to “make him go away” or pony up a 50 percent stake in the CVS. Didden refused.
Just a day later, the Village of Port Chester condemned Didden’s land, which it planned to hand over to the developer. Didden sued, but last year the U.S. Court of Appeals for the 2nd Circuit ruled the condemnation was consistent with Kelo.
“It took me years of hard work to buy that property, pay off my mortgages and really feel like I own it,” Didden said in a December press release issued by his attorneys at the Institute for Justice, a libertarian public interest law firm that frequently handles eminent domain cases.
”Kelo did spark a massive public backlash,” says Institute for Justice attorney Dana Berliner, “but at the same time it emboldened local governments to further abuse of eminent domain for private purposes. And it emboldened courts to approve these abuses.”
Well, I’m not sure I’d go along with that last bit—after all, Kelo is now the law of the land, so courts that don’t “approve these abuses” could fairly be said to be engaging in judicial activism, something rightly frowned upon by judicial conservatives.
Besides, the makeup of the Supreme Court hasn’t changed, with respect to the Kelo decision—O’Connor and Rehnquist having both dissented, as Roberts and Alito would be likely to do now, with Kennedy the swing vote in favor of undercutting the notion of private property in favor of government whim—so there is really no reason for the Supreme Court to hear the case, with the outcome already decided. Which is why it is essential that lawmakers adopt measures to curtail the use of eminent domain (something they will do just as soon as they are finished plundering the booty, bless their principled hearts).
Still, those Justices who ruled in favor of New London—in effect allowing the vague notion of public good to be defined by local municipalities at the expense of private property, a move that essentially makes all property government-leased rather than individually owned (in that it “belongs” to the owner only until the local government decides it can put the land to “better” use)—should be vilified for the ruling.
In a just world, the next SCOTUS confirmation hearings would turn to questions about the nature of private property. Because I’d love to see the press try to spin a nominee’s dubiousness over the government’s ability to snatch your home and turn it over to a private developer as the mark of an “arch conservative.”
Instead, we’ll be hearing once again about SUPER DOOPER QUADROOPERY precedent with respect to abortion, even as an expansion of the commerce clause and the complete redefining of the parameters for eminent domain use give the government the very kinds of fascist powers that our “progressive” friends claim to abhor.
We saw in the Gonzales v Carhart decision last week hints that Scalia might be willing to rethink his commerce clause ruling in Raich if given the opportunity. Sadly, Kennedy seems to wear his Kelo opinion as a point of pride, meaning that until the court houses a less big government “conservative”—or at least a single principled “liberal”—ownership is merely an illusion, and the American Dream a convenient fiction, the new opiate of the masses.
Jeff, I don’t think that Scalia’s concurrence with Thomas is indication that he will reconsider Raich. I think it more likely he was agreeing with Thomas’ hateration to Roe and Casey.
Could be. Interesting discussion on the question here in the post and comments.
Based on some of its reasoning, one wonders how long the big red noses, bald skullcaps, giant floppy shoes and those little tiny parasols can hold out.
And yes, I for one welcome our new overlords.
Yeah, I saw that on the day Carhart was issued, but was too busy arguing in one of the other posts.
The reason that I don’t think Scalia will flip back from his Commerce Clause concurrence in Raich is because, like some others, I don’t think he flipped on his previous Commerce jurisprudence when he decided to join the more liberal justices at all. He was perfectly on board with the same Commerce test in Lopez and Morrison.
The majority and the dissenters in Raich essentially agreed on the proper treatment of the Commerce Clause, they just disagreed over the degree to which purely intrastate growth of marijuana affected interstate commerce.
In other words, Raich won’t be “reconsidered” because everyone (except Thomas) agrees that they applied the right law. It was just a question of how much effect is “substantial.” Scalia, Souter, Ginsburg, Kennedy, and Breyer went one way. O’Connor, Rehnquist, and Thomas went another–with Thomas continuing his snit over Lopez.
There’s nothing to reconsider. This case–on commerce clause grounds–would depend solely on its own facts, not the court’s treatment in Raich. (And, incidentally, I think it unlikely that the court would even have to use the “substantial effect” test because the women, doctors, and medical instruments involved in abortion are probably all items in interstate commerce anyways; it’s unlikely that we could find a doctor who was educated solely intrastate, who operates a building where all the medical impliments were made intrastate, and where all the patients are from the same state.)
Finally, I know that another discussion of Carhart wasn’t really the point of your post. I just keyed in on your Scalia shout-out and thought I’d share.
Ok, someone explain in layman’s terms to me how a man can have his property taken away to build the exact same type of business that he himself was going to build.
RWS
It cannot be explained to us laymen. You need to be hopelessly overeducated to fall for the sophistimacated arguments that allow such a travesty. But the Supremes also said that your state lege can provide protection that is absent, in their opinion, in the Constitution and Bill of Rights. Yeah, that’s gonna happen.
Ok, someone explain in layman’s terms to me how a man can have his property taken away to build the exact same type of business that he himself was going to build.
Police power of the state. However the founding fathers never envisioned this skewed interpretation of emmenent domain. Keep in mind in the first drafts of our Constitution it was “Life, Liberty, and Property” The ability to obtain and trade real property being a cornerstone of econmomic freedom.
“Ok, someone explain in layman’s terms to me how a man can have his property taken away to build the exact same type of business that he himself was going to build.”
Unelected judges have a harder time, post-kelo, overturning the decisions of our democratically elected legislatures and city councils. Thats how.
RWS, it’s because Justice Stevens thought he was clever when he wrote the majority decision in Kelo. Unfortunately, the lower courts don’t have time to play games. They generally just do as they are told, and the result in Didden, arguably, is exactly what they were told to do.
I think that the lower courts are ignoring Justice Kennedy’s concurrence where he said that deference to a city’s economic development plan should not be given if the court suspects that there is some funny business going on.
Oh, boy! It’s Emmadine!
Bravely standing up for the right of mobs to abuse the rights of others!
Brave, brave Emma!
Proudly standing astride the ruins of the lives of the unpopular, standing four-square in defense of the land developers who have sufficiently promised payback to the mob!
Proud, proud Emma!
Because, as we all know, the left is all about following the dictates of the selected, and to Hell with principle!
(Emmadine’s crazy.)
Kelo sucked.
Period.
Next!
“Bravely standing up for the right of mobs to abuse the rights of others! “
Oh believe me. I think its totally a bad thing that courts’ ability to overturn democratic decisions has been curtailed. How else do we protect minority rights?
The question is one of individual rights, and the courts are the mechanism that is supposed to protect the individual from the rest of the government.
Leave her be, Pablo. She’s just explicitly stated that she would rather live in a judicial oligarchy than a representative democracy.
RUTH BADER GINSBERG IS MY MASTER!
Gabriel —
I hear you, but I’m pretty sure that Scalia helped turn the tide on a pushback against commerce clause expansions by way of the court. I think Thomas is right to be in a snit, I guess.
I did a post not too far back (maybe when Raich lost an appeal recently?) where I cited a few essays that defended Scalia as consistent (or, at least, predictable on this point), but most others of the libertarian conservative stripe I linked and referenced thought his decision likely politically motivated.
“The question is one of individual rights, and the courts are the mechanism that is supposed to protect the individual from the rest of the government.”
Right. Trivially, an individual vs. a majority in a legislature is a minority. Courts are how we protect minorities from majorities. By overturning or preventing the majority will.
So long as the majority will is unconstitutional, is what you probably meant. Right Emma?
Or do you fancy Judges philosopher kings?
If I were the CVS guy in this case, I’d FIND enough hazardous waste to turn that plot into a Superfund site.
I’m with SDN. If the Guv. steals your property, render it unusable. The alternative is to defend it with a gun and hope that the media considers your martyrdom worth a few minutes on the evening news. If some Hollywood bimbo O.D.s on the same day, you will be S.O.L.
The good news is that Michigan voters passed a ballot initiative last Nov. that affirms the right of private property here.