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June 23, 2005
supremely screwed
I am very conflicted about today's Supreme Court decision. Such a ruling shifts the legal framework in which urban development takes place. It will have serious repercussions on how cities plan redevelopment strategies.
The 5-4 ruling extends the Takings Clause of the Fifth Amendment, previously limited "for public use", to some private development. These must serve a public function by providing growth, and the displaced citizens must receive fair and market-value compensation for their loss. You can find the majority opinion here.
I am uneasy with this development, because I feel that private property -and the sanctity of it guaranteed by our constitution- is central to American law and society. I am concerned that, as Justice O'Connor wrote in her dissenting opinion:
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner.
And that's scary. Doubly so, since I find myself in the uncomfortable position of agreeing with Justice O'Connor.
Yet I do understand the majority opinion's position. Increasingly, private actors are playing central roles in communities' redevelopment strategies. It would be foolish not to recognize that as such, they do play a "public role".
So doesn't it make sense to extend the Takings Clause to such cases where it is in the community's best interest? After all, a lot of us have seen first-hand the impressive projects that these kinds of rights have allowed European governments to complete. Unburdened by strict court backing of property rights and community activism, they have build subways and bullet trains, etc. Sometimes I wish we could do the same here.
I suppose that as in all things, a proper balance must be struck. In this case, one between our individual rights and the public good. I suspect that City ordinances and codes will fill that legal void and define that balance locally. Who knows? Perhaps communities will be better served for it.
Posted by jessehudson at June 23, 2005 10:53 AM
Comments
Don't worry about feeling conflicted-- your gut revulsion from the decision is accurate. The Court majority has erred. Grievously. And I think the key point -- which must be repeated endlessly -- is that the use of eminent domain which the Court supports simply doesn't work.
Posted by: David Sucher at June 23, 2005 03:44 PM
mm. It does look that way. I just wish I understood the legal issues better. What constitutes eminent domain? And how does this ruling change the ability of private citizens to challenge city governments? I just don't know.
Posted by: jesse at June 23, 2005 04:25 PM
I don't think you understand how the law has worked until now. Even before today states and cities could take private property to build things like bullet trains and subways. That was not the issue here at all. It was can a city take away people's homes and give them to a private corporation becuase the corporation _might_ create more jobs and/or tax revenue. That has nothing to do with European public transport.
Posted by: Law Clerk at June 23, 2005 08:57 PM
no, you're right. That's why I wrote "I just wish I understood the legal issues better".
But I do think you may have misunderstood my comment about the EU. The specifics of U.S. "Eminent Domain" aside, in many member countries (especially "Statist" France), citizens have never had the level of protection of property rights that we have had enshrined (until now?) in our constitution. Most of the time, the result was disastrous government decision-making, regardless of whom the beneficiary was - public or private. The point is that there was little if any public oversight (see: le Forum des Halles in Paris), for projects which offered dubious public good. But often offered plenty of perks for French private companies.
But it sure made it easier for them to, say, charge people for driving downtown, or take over private land to build massive rail systems.
I was simply using this example to point out the inherent ambiguity that often exists between one's "progressive" ideals and individual rights.
Posted by: jesse at June 24, 2005 10:30 AM
Hi
Just found this site through a link on Beastblog, and wanted you to know that this court decision hits very close to home:
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/07/02/BAGO4DI6GJ1.DTL
This is all taking place just steps from the Fox Theater you wrote about in a newer post...
Posted by: Erin at July 2, 2005 04:55 PM
Very interesting, thanks Erin. This is very close to home indeed!
Posted by: jesse at July 2, 2005 08:42 PM
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