SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Friday, June 24, 2005

LANDMARK LAND GRAB CASE: THOUGHTS ON KELO. Yesterday I read through the U.S. Supreme Court opinions in Kelo v. City of New London (2005). This is the 5-4 decision giving WIDE discretion to federal, state and local governments to seize persons private property for “public purposes.”

It should be noted by all that this case mostly sets the floor for constitutional protection of property. States and local governments have the ability to put in place more exacting standards for state and local governments to meet if they wish to confiscate privately-held property. As Washington State’s Attorney General Rob McKenna commented in a recent press release:

The Washington Supreme Court has defined the "public benefit" limitation more narrowly than the definition used by the U.S. Supreme Court in the recently announced Kelo decision. Accordingly, the condemnation of private property for the type of development at issue in the Kelo case would likely be evaluated as a matter of state constitutional law under standards that are potentially more protective of private property rights than those used by the U.S. Supreme Court today.

Make no mistake: this decision has eroded serious safeguards to prevent government to take people’s land for legitimate public use. I do not agree with the majority in this decision. The “public purpose” standard that the majority adopts is simply too open-ended. Thanks to this decision, the passage of generalized, comprehensive “economic development” projects by state or local governments now pass Constitutional muster under the Fifth Amendment (as applied to the states through the Fourteenth Amendment).

As Justice O’Connor noted in dissent, there is ALWAYS room for improvement of property. Nobody ever puts property to it’s highest and best use. Motel 6 can always be replaced by the Ritz-Carlton. Justice Thomas also penned a solo dissent, which delved more deeply into the history of the Takings Clause (the all-encompassing term for the Public Use and Just Compensation Clauses. As Justice Thomas put it, “Though citizens are safe from the government in their homes, the homes themselves are not.”

Justice Thomas also put the Takings Clause in its proper context. The clause is contained within the original articles comprising the Bill of Rights. Hence, it is a negative power grant. It is designed to PROHIBIT government action, rather than EMPOWER it. By contrast, the majority treats the Takings Clause more like and enforcement clause, such as the Necessary and Proper Clause.

In his opinion for the majority, Justice Stevens justified such takings because of the evolving needs of society. But isn’t there a Bill of Rights in place to provide timeless guarantees of rights that might otherwise be eroded by the passions of people and government over the passing of time?

(Downtown Seattle, WA)


  • At 10:48 AM, Blogger Forrest said…

    You're totally right. South Park must make an episode spoofing the Tom Cruise fiasco. I don't think the new season starts for awhile though and by that time Jerry Maguire will already have a new girlfriend. You gotta check out the Matt Lauer interview of Cruise it is amazing.

  • At 2:36 PM, Blogger (Doxxiegirl) said…

    haha...I was expecting the comment to have something to do with Coop's latest blog...Man, that tom cruise leaks in everywhere ( :

  • At 3:04 PM, Blogger Coop said…

    I thought that by making comments on other blogs, I could keep my own, much-neglected little corner of the blogosphere free and clear of this Cruise drama. Alas, its now seeped its way into my own comment section...

    For the record, I would rather watch a non-stop Jerry Maguire triple feature than sit through a lengthy segment of the Today Show. I'll just have to get my Cruise/Lauer news refracted through the words of bloggers whose sites I already frequent and though whatever headlines I happen to notice at the grocery store checkout stand.


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