Private Homes may be taken for public good

A.Melon juicy at
Fri Jun 24 09:05:48 PDT 2005

> >From: "A.Melon" <juicy at>
> >The principle of using the takings clause to transfer private property
> >to private parties has already been approved by the Supremes.  This is
> >but another variation.
> >
> Interesting that the author of that opinion was O'Connor, who authored the 
> *dissent* from this week's opinion.  Apparently, taking property from one 
> private individual and giving it to another is fine with her if the one 
> you're taking it from is a member of an (evil by definition) "oligopoly".
> O'Connor's dissent in the recent case is full of hair-splitting about why 
> this transfer isn't for public use while the other one was, but all of her 
> arguments would have and should have applied to the earlier case as well.
> There is a special place in Hell reserved for people like her who open the 
> proverbial barn door and then proceed to complain when the whole herd 
> stampedes through. The key word is "principles": O'Connor should find some 
> and try applying them consistently.

In her defense, she *thinks* she's identified a legitimate
distinction.  She thinks there's a fundamental difference between
taking property for the purpose of economic development and taking
property to break up a landholder oligopoly on a small island.
Unfortunately, she's wrong.  She's a two-bit socialist in the realm of
constitutional takings. She has no compunctions about taking from the
rich and giving to the poor, or taking from someone to protect the
"environment." But she starts whining when the court decides to take
from the (relatively) poor and give to the rich.

As for Berman... (quoting O'Connor's dissent from Kelo)
> In Berman, we upheld takings within a blighted neighborhood of
> Washington, D. C. The neighborhood had so deteriorated that, for
> example, 64.3% of its dwellings were beyond repair. 348 U. S., at
> 30.  It had become burdened with "overcrowding of dwellings," "lack
> of adequate streets and alleys," and "lack of light and air." Id.,
> at 34.  Congress had determined that the neighborhood had become
> "injurious to the public health, safety, morals, and welfare" and
> that it was necessary to "eliminat[e] all such injurious conditions
> by employing all means necessary and appropriate for the purpose,"
> including eminent domain.

Those are good reasons for the government to do something, although I
can't agree that taking the property to raze it and sell it to
developers -- no matter what the reason -- qualifies as public use. To
be constitutional, they'd have had to turn the area into a public park
or a museum or something.

A reasonable action under our current system of government and
jurisprudence could have been for the D.C. city council (which can be
overridden by Congress, but Congress generally leaves it alone) to
enact a health and safety law requiring the property owners to fix
things, and fining them and having the city fix things if the property
owners did not comply. If fixing meant razing the buildings and
putting up tents, so be it. But no level of government had the right
to take titles from the land owners unless the land would then be put
to public use.

I don't philosophically support that solution because it violates
private property rights. If someone wants to live in an unsafe or
unhealthy environment with no light and no alleys, the government
shouldn't have the power to intervene. But it's widely accepted in
urban areas that the government has the power to intervene on the
basis of gross neglect of public (e.g. tenant) health and safety, and
that's a somewhat better and less intrusive way of fixing the
situation in Berman without going so far as taking the property away
from the landholders. The opening paragraph of Berman admits that the
property, once taken, "may be" (i.e. will be) sold to private

So, while O'Connor shouldn't be defending either decision, at least
there was some basis for the government to do *something* in Berman.
And at least, because O'Connor wasn't part of that decision, she can't
be accused of violating her own principles in Kelo with respect to

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