Kelo Turns One

Excellent article. In a few short paragraphs you exposed the "legal realist" understanding of rights for the nihilistic, totalitarian nonsense it is.

I think you (and others opposed to Kelo) or focusing too much on the "public" issue.

If the state were to use eminent domain to build a public housing project, that would clearly fall under the public use requirement.

But I think it's FAR BETTER to have private housing developmetns as opposed to public housing projects.

Don, what about the argument that the US Supreme Court was merely deferring to state law (Connecticut in this case) on eminent domain? In other words, this is federalism at work. What are your thoughts on this line of argument?

Regarding your op-ed, I will pose another question based on arguments I hear from progressives/statists. Are private property rights so sacrosanct that they can't or shouldn't be regulated? Without zoning, for example, couldn't a neighbor of mine open a sexually oriented business (SOB)? Certainly, that would impact my quality of life, and impact the value of my property. Ironically, land use regulations can be used to protect private property rights. Of course, the property owner affected by an SOB next door could sue that property owner, but on what grounds? What is the cost? What is the chance for success? One might argue that the power of litigation is not a panacea for the abuse of an unregulated right. Your thoughts?

I find it surprising that much of the comentary on Kelo does not acknowledge that the principles followed by the Supreme Court in that case were established in Berman v. Parker, 348 U.S. 26 (1954). In Berman, the court held that private property could be taken and turned over to another private entitiy, as long as the government asserted that some public purpose was served by the taking. In Berman, the public purpose asserted was the elimination of blight, even though Berman's property was a thriving business and was not contributing to blight. The court held that it was not reasonable to limit the government to just taking blighted properties, on the grounds that centralized planning was necessary to have an effective program to eliminate blight. Consequently, this year we are actually memorializing the 52th anniversary of the proposition that private property can be taken and turned over to another private entity. Since most takings are made by local governments, the most feasible solution would be to get voters motiviated to insist that state legislatures enact laws precluding the more egregious examples of such takings, such as for economic development.

Re: The "Federalism at work" argument

The court is meant to defer to the states those rights not enumerated in the Constitution. Those that are enumerated in the Constitution must be upheld by every branch of government. The natural right to own property protected from the hand of the state except for public use and with just compensation has effectively been eliminated. There is nothing in the doctrine of Constitutional Federalism that condones this.

"Those that are enumerated in the Constitution must be upheld by every branch of government."

Actually, the original doctrine of the rights in the Bill of Rights is that they only apply to the federal government. See Barron v. Baltimore.

Sure, sure. But the 14th amendment arose to deal with the failings of the original doctrine. And, though there's some controversy over its ratification, I believe it strengthens the case for Federalism.

The 14th Amendment arose to help Congress pass laws to protect the free slaves.

It wasn't until many decades later that the Supreme Court magically discvoered stuff in there which had never been there before.

In Hurtado v. California (1884), the Supreme Court reaffirmed that the Bill of Rights does not apply to the states.

Hmm. All right, you've got me. I'm obviously no law scholar.

Public schools have to say, don't have to say the Pledge of Alliegence