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  • From: Clansgian AT wmconnect.com
  • To: homestead AT lists.ibiblio.org
  • Subject: Re: [Homestead] An article cheering the Supremes
  • Date: Mon, 4 Jul 2005 15:40:16 EDT

In a message dated 7/4/2005 1:19:45 PM Eastern Standard Time,
genegerue AT ruralize.com writes:


> 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."
>

O'Connor opined that Kelo was a reversal, or at least the setting aside of,
Berman v Parker. In that case it was established that the are under
condemnation was a harm to the public. Commenting on Berman O'Connor says:



" This case returns us for the first time in over 20 years to the hard
question of when a purportedly “public purpose” taking meets the public use
requirement. It presents an issue of first impression: Are economic
development
takings constitutional? I would hold that they are not. We are guided by two
precedents about the taking of real property by eminent domain. In Berman, we
upheld
takings within a blighted neighborhood of Washington, D. C. ...... Congress
had determined that the neighborhood had become “injurious to the public
health, safety, morals, and welfare” and that it was necessary to
“eliminat[e] all
such injurious conditions by employing all means necessary and appropriate
for
the purpose,” including eminent domain.

......

The Court’s holdings in Berman and Midkiff were true to the principle
underlying the Public Use Clause. In both those cases, the extraordinary,
precondemnation use of the targeted property inflicted affirmative harm on
society–in
Berman through blight resulting from extreme poverty "

In the Berman case those wishing to employ eninent domain had to establish is
was for the public good because there was an actual harm on society that they
were eliminating, and once they eliminated that harm, something had to be
done with the property so it was sold for private use. The difference, as
O'Connor points out is that in New London there is no pretense to eliminating
a harm
to the public, it is purely a taking of property from poorer people and
giving it to richer people because the sovereignty can make more money on it.
It
set aside the principle behind Berman rather than refine it.

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

That is right, it won't be the last. In time it is possible that Kelo will
effectively reversed. Another possibility is that in most municipalities
when
just compensation is being disputed, the property owner can insist that it be
set by jury. Jury activism might catch on and what the developer is trying
to
steal for $100K the jury might set at $10M. I'd love to be on one of those
juries.

James






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