I would LOVE to agree with Ann Althouse but....

Ann is very wrong on Kelo

That's what Justice Thomas wrote in dissent in Kelo v. City of New London, yesterday's Supreme Court Takings Clause case. Much of the criticism of the case that I've seen taps the stimulating rhetoric served up by Justice Thomas. Is the outcry justified?

Admitedly as my head has cooled and reading some of the opinions out there in TV land i have seen the court's call here wasn't utterly radical. However the court was still absolutely wrong.

Some people would like to say that the city should have had to run the development project itself for it to count as "public use." Should that be an absolute rule? No private developers? The public benefit is still there:

"Promoting economic development is a traditional and long accepted function of government," Justice Stevens said, adding, "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."...

Justice Stevens ... said the plan "unquestionably serves a public purpose," even though it was intended to increase jobs and tax revenue rather than remove blight.

as Tucker Carlson and the Lawyer for New London pointed out on his show ( I can't find the link... grrrrr) that property when taken in a E.D case isn't always used for the express intent of the E.D...

so this goes against

He described the plan as "carefully formulated" and comprehensive.

so the state can, quite abitrarially take Land in a carefully planned manner and not use it.The power was gross and unchecked.

and Ann missed something *I* see as a primal part of Federalism ( which both Justices Thomas and O'Connor sited)

It's interesting -- isn't it -- that the Court's liberals stressed "federalism," which the conservatives often praise, and the Court's conservatives stress the oppression of the poor by the rich, usually the plaint of the liberal.

Federalism isn't just about empowering the states. Feaderalism is about limiting the power of government all togther. About laying out a line which says "you can do this, the states can do this, but you absolutely can't do this"

It is in that third vein of federalism that Justice Thomas and O'Conner were working. And Souter ( i used to like Souter) along with Breyer are all about finding ways to empower the government. I am not sure how to justify the mindsets of the other three jurists but it wasn't federalism... not in any traditional sense.

There is a message here for local government: if you go further than the City of New London did in Kelo, you will get tied up in litigation. Thus, the case doesn't unleash local government to condemn property willy-nilly and shift ownership around lightly. Merrill describes the kind of case that might turn that amber light red: "a case in which it looked like some politically unaccountable development authority had sold out to a private developer or big box store."

that assumes that you can find a Lawyer willing to go to bat for a case like this again...
and it assumes that you can afford to after the local government decides what is "fair value" of your property.

In short this has just enhanced the power of the localities and the states to stifle the common folks.

In Georgia i've heard Boortz talk about how they ramped up the power of local school districts to bully property owners out for more profitable revune property owners.

Kelo was about more then just New London it was about does the state have primacy or do the people.

The constitution is clear power comes from the people, Kelo is clear power belongs to the state

thanks to Dean for the hook up