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June 24, 2005
More on Kelo
Andy McCarthy at NRO raises an interesting point on the Supreme Court's Kelo decision. Basically, what the court has done here is set up a lower standard of proof to take a house than is needed to get a search warrant:
The allegedly crooked Dallas pols Rod refers to get a lot more protection from the Court than do innocent citizens. Before the FBI raided the pols' offices, they first had to get a search warrant by establishing to the satisfaction of a judge probable cause both that a crime had been or was being committed and that evidence of the crime would be found in those offices. Not only that. So deeply concerned is our law with the rights and privacy interests of criminals that, when they become defendants, they get a second bite at the apple: namely, they are permitted to move to suppress the evidence seized on the ground that the search warrant was improperly obtained. If they lose and are convicted, they get to litigate the search all over again on appeal. At each stage, the government must satisfy the court that its reason for doing the search was compelling enough (i.e., satisfied “probable cause”) to overcome the privacy interest.Now, I don't think local governments are going to begin indiscriminately snatching private property. Eminent domain really is the 'nuclear option' of local politics and I think if local governments try to abuse it, they will be punished by their constituents.Under Kelo, however, the innocent homeowner is out of luck. The Court has decided not only on a very lax standard (“public purpose”) for taking property. It also says that with regard to this lax standard it must afford Congress an exceedingly deferential (i.e., virtually non-existent) standard of review.
I'm a big fan of economic development projects, but think the city should be willing to take all necessary steps to ensure economic development and that eminent domain should only be used as a last resort in extreme cases. I don't think this one fit that definition, and a lower standard was accepted. Stevens left the door too open in this case and shows too much deference to government and too little to the rights of homeowners, which is my major problem with it.
Posted by slublog at June 24, 2005 12:02 PM
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Now, I don't think local governments are going to begin indiscriminately snatching private property. Eminent domain really is the 'nuclear option' of local politics and I think if local governments try to abuse it, they will be punished by their constituents.
It's already happening in Texas.
Texas Land GrabYes, I'm a link whore.
Posted by: digitalbrownshirt at June 24, 2005 11:56 PM