06-29-2005, 04:46 PM
Sigh. Where to begin?
Let's see.
1. The compensation required under the Takings Clause is "fair market value." So if your house is worth $300k on the market, that's what you're entitled to.
It doesn't necessarily fully compensate property owners. Many people internally value their property at a price far higher than fair market value. But Kelo does not authorize takings for less than fair market value. And given the rock-solid jurisprudence on takings clause compensation, I think it's highly unlikely that FMV will ever be abandoned.
2. What Madison or whoever thought the takings clause meant in 1791 is completely irrelevant. In 1791, the takings clause didn't apply at all to actions by the states.
In the first half of the twentieth century, the Supreme Court ruled that, like most of the Bill of Rights, the Takings Clause was incorporated by the 14th amendment. It has only been since that time that the federal takings clause provided any protection at all against state actions.
(Of course, various state constitutional provisions provided varying levels of protection prior to that time).
3. Kelo is consistent with a century of case law. Kelo is not the first case to say that purposes like economic development or job-creation satisfy the "public use" prong of the takings clause.
In fact, post-Kelo, property owners are probably in a better position than they were previously. The previous decision, Midkiff in 1984, was a unanimous Supreme Court decision that contained broad language to the effect that the public use requirement would be satisfied by whatever the legislature said:
Midkiff, 467 U.S. at 240-41.
Kelo moves backwards significantly from that position.
(See also further discussion of the existing case law, at http://prawfsblawg.blogs.com/prawfsblawg/2...o_of_overr.html ).
4. Kelo is a 5-4 decision with a concurrence, which suggests that Kennedy's concurrence is what many lower courts will look to in interpreting and applying it.
Kennedy's concurrence focused on the extensive hearings and administrative proceedings that the city did before deciding, through a transparent process, what to do with which properties. Kennedy's concurrence strongly implies that, absent a lengthy administrative proceeding with transparency and opportunity for input by community members, such a taking would not be upheld.
Compared to Midkiff, which was the leading case prior to Kelo, this is a huge benefit to property owners.
5. Kelo determines only the reach of the constitutional provision. It is entirely within the powers of Congress and/or appropriate state legislatures to pass laws further restricting the use of eminent domain within their respective spheres.
Let's see.
1. The compensation required under the Takings Clause is "fair market value." So if your house is worth $300k on the market, that's what you're entitled to.
It doesn't necessarily fully compensate property owners. Many people internally value their property at a price far higher than fair market value. But Kelo does not authorize takings for less than fair market value. And given the rock-solid jurisprudence on takings clause compensation, I think it's highly unlikely that FMV will ever be abandoned.
2. What Madison or whoever thought the takings clause meant in 1791 is completely irrelevant. In 1791, the takings clause didn't apply at all to actions by the states.
In the first half of the twentieth century, the Supreme Court ruled that, like most of the Bill of Rights, the Takings Clause was incorporated by the 14th amendment. It has only been since that time that the federal takings clause provided any protection at all against state actions.
(Of course, various state constitutional provisions provided varying levels of protection prior to that time).
3. Kelo is consistent with a century of case law. Kelo is not the first case to say that purposes like economic development or job-creation satisfy the "public use" prong of the takings clause.
In fact, post-Kelo, property owners are probably in a better position than they were previously. The previous decision, Midkiff in 1984, was a unanimous Supreme Court decision that contained broad language to the effect that the public use requirement would be satisfied by whatever the legislature said:
Quote:The "public use" requirement is thus coterminous with the scope of a sovereign's police powers. There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. TVA v. Welch, which emphasized that "[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields." In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation."
Midkiff, 467 U.S. at 240-41.
Kelo moves backwards significantly from that position.
(See also further discussion of the existing case law, at http://prawfsblawg.blogs.com/prawfsblawg/2...o_of_overr.html ).
4. Kelo is a 5-4 decision with a concurrence, which suggests that Kennedy's concurrence is what many lower courts will look to in interpreting and applying it.
Kennedy's concurrence focused on the extensive hearings and administrative proceedings that the city did before deciding, through a transparent process, what to do with which properties. Kennedy's concurrence strongly implies that, absent a lengthy administrative proceeding with transparency and opportunity for input by community members, such a taking would not be upheld.
Compared to Midkiff, which was the leading case prior to Kelo, this is a huge benefit to property owners.
5. Kelo determines only the reach of the constitutional provision. It is entirely within the powers of Congress and/or appropriate state legislatures to pass laws further restricting the use of eminent domain within their respective spheres.