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  • From: Gene GeRue <genegerue AT ruralize.com>
  • To: homestead AT lists.ibiblio.org
  • Subject: Re: [Homestead] An article cheering the Supremes
  • Date: Mon, 04 Jul 2005 10:18:00 -0700


Not especially the wording: "... do not realistically exclude any takings.."

Sandra Day O'Connor was my favorite Supreme and I regret that she is leaving. Note that in her wording above, she does not make it absolute, modifying with "realistically."

Most legal commentators in the wake of Kelo have opined that New London's development plan is incidental since the same way that 'public use' is being left up to local interpretation, so is the concept of 'comprehensive plan'. If a local government wants to condemn your house so that a contractor can build a bigger house just on your lot, the Kelo decision covers that.

That's a stretch. The guy who has proposed building The Lost Liberty Hotel on Justice Souter's house site may help get that clarified. Large money has been offered him for the exercise. Inasmuch as Souter would have to recuse himself, the Court would be at an even number. Add the fact that O'Connor's replacement will be more predictably conservative. We would likely get a balancing back.

The Kelo decision is a refinement of Berman v. Parker, 1954, a case involving DC slum improvement, so the current concept of public use is at least that old. Key words in that decision include: " . . . to eliminate and prevent slum and substandard housing conditions . . . even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes."

Kelo will not be the last decision we see defining public use. I expect we will first see greater attention to just compensation.






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