The Eminent Domain Revolt

Twist the Constitution and you can un-do decades of work sustaining the right to housing. What is the "public interest"? A legal expert analyzes recent legislative proposals and presents a new argument for housing rights.

Twist the Constitution and you can un-do decades of work sustaining the right to housing. What is the "public interest"? A legal expert analyzes recent legislative proposals and presents a new argument for housing rights.

Annotation. Twist the Constitution and you can un-do decades of work sustaining the right to housing. What is the "public interest"? A legal expert analyzes recent legislative proposals and presents a new argument for housing rights.

This is a postscript to the author's book, THE EMINENT DOMAIN REVOLT: CHANGING PERCEPTIONS IN A NEW CONSTITUTIONAL EPOCH, New York: Algora Publishing, 2006. The history of the scrutiny regime reveals that the Court has an elaborate remedy mechanism when government has failed to established government purpose. In the eminent domain context, once government loses and property owners have to shape the relief, the property owners will find themselves obliged to provide the government purpose which the government lacked. That is, they will have to ask the Court to order the kinds of facts the government contemplated in its pre-textual, sham allegation of government purpose. Thus, we enter an era - the way for which was paved by the Abbott v. Burke education litigants in New Jersey - in which victorious litigants must engage in constant litigation, monitoring and policy development, in order to see that government purpose is carried out, WITHOUT using the unconstitutional means government originally suggested.

In The Market Revolution, one of America's most distinguished historians offers a major reinterpretation of a pivotal moment in United States history. Based on impeccable scholarship and written with grace and style, this volume provides a sweeping political and social history of the entire period from the diplomacy of John Quincy Adams to the birth of Mormonism under Joseph Smith, from Jackson's slaughter of the Indians in Georgia and Florida to the Depression of 1819, and from the growth of women's rights to the spread of the temperance movement. Equally important, he offers a provocative new way of looking at this crucial period, showing how the boom that followed the War of 1812 ignited a generational conflict over the republic's destiny, a struggle that changed America dramatically. Sellers stresses throughout that democracy was born in tension with capitalism, not as its natural political expression, and he shows how the massive national resistance to commercial interests ultimately rallied around Andrew Jackson. An unusually comprehensive blend of social, economic, political, religious, and cultural history, this accessible work provides a challenging analysis of this period, with important implications for the study of American history as a whole. It will revolutionize thinking about Jacksonian America.

"Excellent balance of case excerpts and author explanation, highly appropriate for undergraduate students." —Dr. Wendy Brame, Briar Cliff University Political factors influence judicial decisions. Arguments and input from lawyers and interest groups, the ebb and flow of public opinion, and especially the ideological and behavioral inclinations of the justices all combine to shape the development of constitutional doctrine. Drawing on political science as much as from legal studies, Constitutional Law for a Changing America: A Short Course helps students realize that Supreme Court cases are more than just legal names and citations. With meticulous revising, the authors streamline material while accounting for recent landmark cases and new scholarship. Ideal for a one semester course, the Eighth Edition of A Short Course offers all the hallmarks of the Rights and Powers volumes in a more condensed format. Students and instructors benefit from the online Con Law Resource Center which houses the supplemental case archive, links to CQ Press reference materials, a moot court simulation, instructor resources, and more.

Homeowners and politicians have simply ignored the Supreme Court's ruling in Kelo v. New London. Informal eminent domain moratoria - established when the Supreme Court agreed to hear the case - have simply continued post-Kelo. It has become evident that government is not willing to send in the police in order to remove people from their housing, even though they have the legal right to do so. This means enforcement of the housing provision of the New Bill of Rights (see article on SSRN discussing this proposal): No individual shall be involuntarily deprived of housing. This language is strict scrutiny for housing. The informal moratoria are strict scrutiny for housing in the eminent domain context. At the same time, it is not clear what other circumstances would permit removal of the people benefiting from these moratoria. For example, as time goes on, the moratoria tend to enforce other provisions of the New Bill of Rights. For example, the Bill also says: No individual shall be involuntarily deprived of liberty. Since, once the condemnation orders were in effect, the persons housed were no longer owners of their property and were subject to rent which none have paid, they are clearly trespassing. This extraordinary state of affairs implies elevated scrutiny for liberty, in the context of trespass where the facts show housing.

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution—even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market. In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

First published in 2007, this collection presents a selection of British pamphlets, which represent the multi-faceted debate on both sides of the political divide in Britain. The pamphlets in this work are organised chronologically in two parts, taking the start of American armed resistance in 1775 as the dividing point. Volume 8 covers the period of 1783 to1785 and includes a consolidated index.

Constitutional law's central narrative in the 20th century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What justifies this phenomenon? How does it work doctrinally? What structures it or limits it? Rubenfeld finds a pattern in constitutional interpretation that answers these questions.