Archive for June, 2005

David asked if I knew anything of the recent 5th amendment Supreme Court decision (Kelo). I happen to have studied the 5th amendment fairly heavily in law school and have followed this case for a while.

The Institute for Justice (although didn’t give me a job after I interviewed with them) is a great organization and did a fantastic job arguing this case and almost (should have) worn.

There is a lot of 5th amendment history, but suffice it to say that the government is granted the power of eminent domain, which is the right to take your property. The founding fathers had two protections built in. 1) The taking entity must pay just compensation (which you would think is FMV but not always) & 2) it must be for a public use. The recent decision dealt with the latter, what is “public use.”

You would think that public use is pretty self explanatory: a park, road, fire station etc. Well you’d be wrong. Under the Court’s newest ruling, the city county etc. can take your land and turn it over to a developer to build something. (In the Kelo case they don’t know what they are going to build). Where is the public use? It seems that because what ever is built there will be worth more than these peoples houses it will bring in more property tax thus helping the public. This means that if a well connected developer wants your property to build a mall/office/restaurant, the city can use its eminent domain powers and give it to the developer. Previous to this case the rule was that if the property was going to be turned over to a private developer then certain rules needed to be met: eliminate blight, reduce unemployment etc. the most famous of this is the Poletown case. Oddly enough the Michigan Supreme Court ruled a year ago that this type of taking is illegal and overturned its previous decision in Poletown.

In addition to being able to take your home, this really decreases the value of investment property, as the developer can get your property at its current value, not what it will be worth after the value increases (ie a road being built).

Anyway there is a lot of information out there, written much better than I can do. For general information there is www.ij.org and www.castlecoalition.org

If you want serious legal discussion check out www.scotusblog.com

As Justice Thomas said in his dissent “Something has gone seriously awry with this CourtÂ’’s interpretation of the Constitution.”