Friday, June 24, 2005

Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.
I leave it to those more qualified than I to comment on the legal fallout of Kelo v. New London (the link is to Justice Thomas' dissent). I will simply gnash my teeth.

UPDATE: An excellent point:
The worth of a thing can only be established by the price for which two parties are willing to transact in that thing at a particular time. If one of the parties is being forced to enter the transaction, then by definition the price he is being paid is less than it is worth to him. Namely, he’s getting ripped off. The whole lynchpin of eminent domain is that certain circumstances warrant ripping people off in that manner in the interest of serving a sufficiently important goal. Society does what it can to compensate the ripped-off individuals, but they are not being paid what their land is actually worth.

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