Monday, August 29, 2005

More On Eminent Domain

Since the Kelo Decision I've been up in arms about eminent domain. If the Supreme Court can't figure out what the Constitution obviously says, it's apparently up to the people to decide. And decide we shall.

Here's the text of an email I received today. Californians, read and act accordingly:

Tomorrow, August 30, the California Judiciary Committee will vote on Senate Constitutional Amendment 15 (SCA 15), the Homeowner and Property Protection Act. If it becomes law -- through a vote by the legislature and a vote by the general public -- this amendment will protect all home and business owners throughout the state from the abuse of eminent domain for private commercial development. It is crucial that the Committee approve the amendment so that the full legislature and the people will have a chance to enact it. If you are interested in the plight of California home and small business owners, it’s vitally important that you contact the members of the Judiciary Committee today and urge them to approve SCA 15.

SCA 15 requires that property taken by eminent domain be owned and occupied by the government entity taking it. It continues to allow condemnations for public utilities and railroads but otherwise flatly prohibits eminent domain for the benefit of private parties. This is the best legislation in the entire country to address the problem of eminent domain abuse that has been introduced since the Kelo decision. If enacted, it will not only protect Californians, but will also serve as an important reform model in other states. There is competing "moratorium" legislation that is being touted by some as a significant reform, but that bill only protects owner-occupied residences, and thus leaves thousands of people vulnerable to eminent domain abuse. Churches, small business owners and tenants, including families who are long-term residents of apartments and other rental homes, will find no protection under the moratorium bill. There are also other proposed constitutional amendments that the committee may consider, but these leave the door wide open to eminent domain abuse.

Please contact the members of the Judiciary Committee as soon as you can and tell them that you support SCA 15 and that it, not the "moratorium" bill or other watered-down constitutional amendments, is the way to accomplish real reform of eminent domain laws in California. SCA 15 has a strong chance of being passed in a vote by the general public; it should not die in committee.

The contact information for the Committee members is here:

Joseph Dunn, Chair: 916-651-4034
Bill Morrow, Vice-Chair: 916-651-4038
Dick Ackerman: 916-651-4033
Gilbert Cedillo: 916-651-4022
Martha Ecutia: 916-651-4030
Liz Figueroa: 916-651-4010
Sheila Kuehl: 916-651-4023

The text of the amendment is available here:

If you are in Sacramento, the meeting is open to the public and we’d urge you to attend it as well -- and be sure to wear any t-shirts or stickers opposing eminent domain abuse. It will be in Room 4203 of the State Capitol Building.

Call today and have your voice heard. We thank you for your help.

Best wishes,
Steven Anderson
Castle Coalition Coordinator

Elizabeth Moser
Outreach Coordinator

Institute for Justice
1717 Pennsylvania Ave NW
Suite 200
Washington, DC 20006
fax 202-955-1329
Castle Coalition:
Litigating for Liberty:


Bored Huge Krill said...

good. This is obviously the right solution. It might be better for it to occur at a federal level, but it's a start.

By the way, I think you're wrong to put blame for the situation at the feet of the supreme court justices. I read an article last week (I'll see if I can find a reference for you) quoting one of the majority authors stating that he thought the conclusion was extremely bad - but he felt compelled to support it because his honest interpretation of the constitution was that it was correct. I think this is in fact typically true; whatever ideologies they might hold, judges do actually care about the law and do their best to uphold it.

Since the result seems to be not one that anybody really wants (except maybe wal-mart) the correct solution is to fix the constitution to make sure it says what we want it to say.

Darren said...

I disagree. I think the Constitution is perfectly clear here in the 5th Amendment: "...nor shall private property be taken for public use, without just compensation."

Taking land via eminent domain and giving it to a developer, who would then use it to increase the tax base, just *cannot* be supported by any reasonable interpretation of the words.

I wouldn't agree with it, but a more reasonable argument would be that the amendment says *nothing* about taking land for *private* use, so New London was justified in making its own decisions. However, that was not the argument presented.

Besides, *no one* believes that the Founders weren't intimately concerned with individual property rights. There's absolutely no evidence to support such a claim. In fact, the Declaration of Independence at first read ", liberty, and the pursuit of property..." but the final word in that phrase was changed from the draft.

Bored Huge Krill said...

I agree with much of what you say, and I agree with your conclusion that the founding fathers would not have intended this result. Nonetheless, I stand by my original statement.

The constitutional language doesn't really speak to the issue at hand. The thrust of the language is about "just compensation", whereas the argument here was about what constitutes a "public use". The state argued that acquiring land to provide to a developer constituted a "public use" because they wanted the tax revenue it generated. That's a particularly cold analysis, and I hope the legislators involved get punished at the polls for their stupidity; they certainly deserve it. The supreme court, however, found that they did not step outside the bounds of the constitutional limitation expressed here, whilst in at least one case (I think it was Stevens - but, again, I'll try to find the reference) stating that they really didn't like that answer but felt compelled to give it as the correct one.

We should be clear here: the state legislature has latitude to decide what it thinks is "right" according to its own whims, and acted like an ass. The supreme court, however, has no such latitude and must rule on what they think the constitution says, irrespective of their personal preferences. I have no reason to doubt their sincerity.

The way forwards here seems very clear to me: I don't doubt that the conclusion is very much not what the framers of the constitution intended to happen. I also don't doubt that the overwhelming majority of Americans don't like this conclusion either. Therefore, the correct way forwards is to amend the federal constitution in the manner that your original post referred to at a state level. I maintain that it is inappropriate to place blame for the result at the feet of the SCOTUS, who are constrained in what they can do and whom I strongly believe to be sincere.

Of course, I'm speaking as a Brit... but an immigrant Brit who came to the US fully accepting the constitution as the social contract under which Americans (and myself) must operate. I care very much about the sanctity of the constitution, and do not like to see it amended for trivial reasons. This case, however, seems to me to make a compelling case for such an amendment; it would essentially be a fix for an unforseen "bug" in the original language


Darren said...

I see what happened as a travesty exactly because the supremes broke the covenant. The Framers' intent is clear, the wording subject to interpretation only by the greatest of contortionists.

You'd have an easier time convincing me of the penumbra "rights to privacy" that justify Roe v. Wade than convincing me that there's any justification, legal or moral, for this decision.

Bored Huge Krill said...

I guess we'll have to agree to disagree.

One thing we might just be able to agree on (perhaps - I'll leave it to you): the real villain here is the state legislature that made the decision in the first place. I don't think we'll be able to agree on whether SCOTUS has culpability also, but so be it.

One other thing we may be able to agree on (again, maybe): the US constitution is in need of a justifiable amendment to fix this mess


Darren said...

We'll agree on the first, but not the second.

The city and state definitely screwed up. Citizens appealed to the Supreme Court for a redress of their grievances and were shot down. The supremes are culpable.

I just don't see why we need a Constitutional amendment to reword what is already in clear English to anyone but an attorney who wants to twist the meaning of any law written.

steve o' said...

the supreme court takes the blame for interpretting the constitution, but remember that they don't get put into that position without a bunch of greedy money-grubbers who take the case to court. lawyers and judges are always the fall guys, but they're only and always acting on the behalf of someone who isn't happy with his fair share of the pie.

i don't have a solution to that, except that we need to focus less on the justices and more on the individuals behind the claim.

Bored Huge Krill said...

I just don't see why we need a Constitutional amendment to reword what is already in clear English to anyone but an attorney who wants to twist the meaning of any law written.

...because that's precisely the test which the wording is required to survive. Apparently it doesn't. Thus, it is broken, and needs to be fixed


Darren said...

When Plessy v. Ferguson was wrongly decided, it didn't take a Constitutional amendment to fix it. It took Brown v. Board of Education 60 years later.

The words didn't change.

Bored Huge Krill said...

well, ok, I we could just wait 60 years. Personally, I'd rather it didn't take that long


Kira Zalan said...

I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.

Darren said...

I agree, Krill, it shouldn't take 60 years. My point was that, while current legal actions will work far more quickly, it *doesn't* take a clarification or rewriting of the Constitution to right a wrong. Sometimes it just takes time and common sense.

How many years were there between Bowers v. Hardwick and Lawrence v. Texas? Only 19. Maybe there's hope in this situation.