Berman. Was. Wrong. (Link updated to what I believe is the correct one now, since original was broken.)
The Kelo attorney has absolutely no chance as long as even he claims Berman was a correct ruling. It was a different court. It was a different time.
If one Court could never bring itself to find that a previous Court had its head up its ass – segregation anyone? – we’d be in big trouble.
Then again, we’re in big trouble anyway. The Court is acting as The Government in this case, naturally siding with The Government. They just don’t get it.
The attorney starts out okay:
Scott G. Bullock represents the homeowners, and his first words to the court strike terror in the heart of anyone who looks into their backyard and sees the ghostly outline of the Target housewares section looming over the trees: “Every home, church, and corner store would produce more tax revenue if it was turned into a shopping mall,” he says. There can be no limit to what the state can condemn if the only requirement is that the proposed project improve the tax base.
Exactly. They are effectively going to allow any taking for any reason at any time from anyone. Oh, it may sound like there has to be a good reason, but we all know how these things go. And once this Court decides the 5th Amendment is void in that respect, how many decades before anyone has the gumption to revisit it before a new nine?
Then a scary exchange that makes one wonder why these people are Justices:
Justice Ruth Bader Ginsburg points out that the city is depressed; what’s wrong with efforts to “build it up and get more jobs?” Bullock says the condemned land in Berman was “blighted,” but this land is merely depressed. O’Connor, never one to tip her hand too early at argument, asks Bullock “What standard should we use to second-guess the legislature?” Bullock insists that once condemned land is passed off to private developers, it’s no longer going to “public use.” Justice Anthony Kennedy interrupts to observe that “everybody knew private developers were the beneficiaries” when slums were condemned in Berman.
Berman was wrong. There is no government right to take property for that reason. It doesn’t exist. A previous Court having said it does only hands the state a license to bring out the guns and violate the Constitution with impunity. It’s just one more “anybody who can read and doesn’t believe a vested interest in state power give a wink and a nod to creeping (soon to be galloping, at this rate) statism could come up with the correct ruling” decision.
Bullock, by supporting the erroneous Berman decision, undermines his own argument. What is “blighted”? Who decides? He has rendered the argument against private developers being the beneficiaries moot by supporting the Berman decision and treating Kelo as different.
Ginsburg’s question may be diabolical advocacy, but otherwise it makes her sound like any idiot off the street who will say “there otta be a law” in response to anything that sounds good to them, regardless of the larger consequences or Constitutional issues.
O’Connor is worried about second-guessing the legislature? Oh please. That’s the job of the Court. If other branches or levels of government step on the Constitution, stopping it is what the Court is there to do. If they aren’t violating anything, fine, of course you don’t second-guess anyone.
It’s a fascinating read, but it’s true that the outcome does not sound promising. It will become entirely a matter of sufficient localized political pressure on a case by case basis to prevent eminent domain abuses.
Or perhaps a new Amendment that is more specific. Apaprently the founders were too vague to prevent a sick statist impulse from taking hold. If you thought the Second Amendment was the only one suffering from lack of reading comprehension, the popular impulse to exert control on the each other, and educational institutions designed to keep people from realizing what’s being lost as the grip tightens, you were mistaken.
(Reposted from here.)