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June 24, 2005
US Supreme Court hands down decision from surreal parallel universe
The US Supreme Court decision in Kelo v. New London is viewed as a set back for private property owners nationwide. The decision gives the green light for cities and states to make the claim that economic development to revitiliize the local economy by bringing more jobs and increasing the tax base is a reasonable "public use."
In the world of legal abstractions, it came as no surprise to court watchers that the liberal justices further broadened the definition of "public use" of the Fifth Amendment's takings clause, while conservative justices expressed concern that it would lead to further abuses. However, in this surreal parallel universe, the liberal penchant for social engineering has turned away from the concept of government-mandated social equity and protection of those less fortunate, leaving conservative justices such as Clarence Thomas to express the concern that the Kelo decision would lead to abuses whose affect would fall "disproportionately on poor communities."
GUIDANCE FOR LOWER COURTS
At this time property-rights advocates are carefully examining the ruling for guidance from the high court on how to distinguish between reasonable public use and "public abuse."
Though the majority opinion, written by Justice Stevens, dismisses the effects of New London homeowners' case as "hypothetical," the separate consenting opinion, written by Justice Kennedy, provides more clarity on where courts must draw the line in the sand to protect property owners from the coercive governmental powers of eminent domain.
According to Kennedy, "a court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits" Kennedy's opinion goes further to state that "plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one," though he balances that statement with the view that any examination should take into account the "presumption that the government’s actions were reasonable and intended to serve a public purpose."
For more on Kennedy's concurring opinion check out SCOTUSblog: Kennedy: A limit on Kelo's reach
Dope on the Slope's take on the prospects of eminent domain abuse in Brooklyn, "Giff Grilled on Air America".
Posted by lumi at June 24, 2005 6:57 AM