Tuesday, March 07, 2006


I noticed this editorial in the Press-Citizen a few days back, discussing the recent Kelo v. New London backlash legislation in Iowa:
While the proponents for curbing eminent domain imply that the Supreme Court's decision breaks from legal tradition, the court basically reaffirmed that eminent domain was already the law of the land. The most germane legal precedents go back at least as early as the 19th century, when the government condemned private land and turned it over to the private railroad companies. Through the use of eminent domain, furthermore, downtown Des Moines has transformed over the last 30 years from a slum into a revitalized business and residential district.

. . .

The issue comes down to whether we trust city government with this power. The Institute for Justice, a national organization fighting commercial use of eminent domain, recently did a state-by-state study in which they found only two abuses of eminent domain in Iowa, both in Dubuque and both complicated by extenuating circumstances. There is, thus, little history of local governments in Iowa seriously abusing this power. The effort to limit eminent domain here seems based more on politics than on specific examples.

I sooo have a problem with this approach. First, the legislation does mark a break with the past, despite arguments to the contrary. The example given by the PC, using eminent domain power to hand over land to a privately owned railroad, is distinguishable from the Kelo decision, a fact that the Court pointed out even within the Kelo decision itself, in discussing the definition of "public use":
On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers.

The Court went on to discuss the New London development plan, finding that the plan as a whole conformed to the concept of a "public purpose" despite the fact that some of it involved handing over the private residences of one person to a developer to be made into private residences for sale to another individual, about as not-public a use as you can get:
The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

My second issue involves the concept of "trust." It seems to me that the op-ed author is of the opinion that despite the fact that the new rulings allow for abuses, no legislative curbs on that power should be enacted until and unless that trust is breached. I've also seen that philosophy referred to by proponents of President Bush's position on the NSA spy program - do you trust GWB with this kind of power?

Maybe it's the education talking, but prevention and the rule of law seem to me too important to simply let issues skate on "but we did it before" and "c'mon, nobody's taken advantage of it yet." Our government is not basically corrupt. It's not out specifically to "get" poor Joe Schmoo who's got a nice bit of ocean-view (okay, cornfield-view in this case) property. But if a leader did become corrupt, or it did set out to get the little guy, what then? Have we got sufficient checks and balances in place to ensure that can't happen? Correct me if I'm wrong, but I think that's the concept which spawned the whole idea of things like the separation of powers and the Bill of Rights. We'd seen what a government free of those checks and balances was capable of doing, and wanted no part of it.

The Kelo decision goes too far for most people's taste, because it incorporates private use into the concept of public purpose, effectively allowing the government to take one person's property and give it to another person. Yes, there are some checks and balances. And perhaps, for some, it's not an issue the way it was applied in New London and would not be a problem as applied in Iowa. But the opportunity for corruption is there, and I think it's smarter to plug the holes before they go too far. Similarly, we can argue the semantics of the AUF and the FISA until we're blue in the face, as there are points on either side as to whether they technically allow the FSA program to skate. But Bush is arguing something far more fundamental: that the legislation is moot because Article II gives him the power for domestic surveillance inherently. I have a real problem with this, even if it's been done before, and even if it's arguable the FSA itself wasn't applied in a way that's fundamentally repugnant. Given the broad spectrum of items that could be considered "incident to war," I cannot fathom anyone not wanting reforms to ensure there are adequate checks on executive power to ensure our rights are respected regardless of who is in power.

Ask the questions, pose the hypotheticals, plug the gaps before they become a problem or political scandal. In what universe is this not a good thing?

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