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Kelover

Professor Bainbridge alerts us to the latest development in the Kelo case. Pfizer is abandoning the property that the City of New London, CT took from Suzette Kelo and others and gave it to develop.  Bainbriadge provides excellent analysis, including a surprise appearance by Russell Kirk.  Liberal jurisprudence in action.

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I don't know if you can blame the courts, here it was the elected city council of New London that decided that it could do this and that this taking was for public purposes because under a rosy scenario it would generate increased tax revenue...nine homes would be destroyed and all of the abandoned Fort Trumbull would be used for businesses that would create jobs and pay taxes. It was an elected body that in the brief put foward that the property could be taken for public use. The city had a subjective belief that the the property was taken for public use, and the Supreme court of Conneticut found this to be objectively reasonable. The US Supreme court simply upheld the constitutionality of the Conneticut statute that permited it. Again a statute written by elected representatives, not the courts.

he Supreme Court in upholding Kelo: "HN11 With respect to takings, viewed as a whole, United States Supreme Court jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. The Court's earliest cases in particular have embodied a strong theme of federalism, emphasizing the "great respect" that the Court owes to state legislatures and state courts in discerning local public needs. These needs are likely to vary depending on a state's resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people. For more than a century, the Court's public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power."

In other words the court isn't going to save you if you elect a city council that decides these sorts of projects are wise, and if the state supreme court upholds it.(which Conneticuts did)

HN17 "The Takings Clause largely operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge."

"HN19 When the legislature's purpose is legitimate and its means are not irrational, the United States Supreme Court's cases make clear that empirical debates over the wisdom of takings--no less than debates over the wisdom of other kinds of socioeconomic legislation--are not to be carried out in the federal courts. "

"HN20-It is not for the courts in a takings review to oversee the choice of a boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete an integrated plan rests in the discretion of the legislative branch."

The Court declined to require a reasonable certainty that the expected public benefits would accrue, nor was it proper to second-guess the city's determination of the boundary of the development area.

Also troublesome:

(3) To effectuate the plan, the city had invoked a state statute that specifically authorized the use of eminent domain to promote economic development.

(4) Given the comprehensive character of the plan, the thorough deliberation that had preceded the plan's adoption, and the limited scope of the Supreme Court's review, it was appropriate for the court to resolve the challenges of the individual private owners, not on a piecemeal basis, but rather in light of the entire plan.

The Supreme Court would have had to hold that a state statute in Conneticut was unconstitutional, and other states have similar statutes. If folks want they can contact state representatives and get these statutes removed. The Supreme Court isn't going to do it for you.

Pfizer was a huge part of it, but it also included: (a) a hotel, (b) restaurants, (c) retail and office spaces, (d) marinas for both recreational and commercial uses, (e) a pedestrian riverwalk, (f) new residences, (g) a museum, and (h) parking spaces.

I am not sure these developments are wise, and as a city council member I would have opposed. The promises are always rosy...and as I believe Ohioans will see when it comes to Casino's often times fail to deliver. Still the real debate over Kelo should occur at Town Hall and City council meetings, or perhaps at the state legistlature, or at the ballot box.

Going the other way on Kelo(potentially right) would have clearly been judicial activism.

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