On this one, we agree completely. (Heh. It's not often I'm completely on the same side as Rehnquist, Scalia, and Thomas.)

Hey, it's a libertarian (small-l) thing. :)

I didn't call out the justices on either side in the original post because I wanted folks to have a chance to think about it before seeing how the Usual Suspects lined up.

Ditto. Apparently the law was, as is usual in these sorts of cases, badly written, but it sounds Connecticut's particular flavor was really badly written, possibly with an eye towards just this sort of thing eventually happening.... [/paranoia]

As a private pilot, this decision leaves me wondering if there's going tbe anyplace left for me to land in 10 years. Little airports need a (relative) lot of land, and most of their community benefit is indirect. Now any developer with deep pockets can even more easily turn airports into strip malls.

Oh, no, my friend. They're looking for low-to-middle-income housing here.

In the New London case, the explicit object of the acquisition was to replace property that generated less taxes with property that generated more taxes. Doing this, in fact, was their rationale that the property was being taken for "public use." So, yes, it's typically going to be private homes that will be taken away in favor of businesses.

The Raich case (medical marijuana) and this one provide an interesting one-two punch. The Raich case says that the federal government can call anything "interstate commerce" and justify stepping into it. The New London case says that local governments can take your property without limitation. So between Washington and local governments, there's no space left for a private life.

I really didn't expect this one to go this way. I'm disappointed.

My personal feeling is that, while eminent domain is ugly when it's abused, it's a bad idea in principle to take away discretion in its use. There are cases where a private development really is in the overwhelming best interest of the community. I think a better approach to limiting the abuse is to strive to make "just compensation" take into account the value of the property to its owner, rather than any estimation of its "fair market" value. Clearly, if the proposed market value were fair to the owner, he would sell willingly. If it's really worth condemning someone's property, it's worth compensating them at a level that will make the public think they were treated fairly rather than screwed.

This case does worry me, but I can't say how I would vote on it if I were on the Court without studying it in a great deal more detail than I'm going to now. The two-sentence summary makes it sound like a terrible decision, but the story Bill links to hints that there may be more sense to it when you dig deeper.

There is no difference between giving discretion and allowing abuse. Once you say that a government can take what belongs to someone, paying what the government regards as "just compensation," to give it to someone else, then the only criterion distinguishing "abuse" from "the overwhelming best interest of the community" is one's personal desires. It's one of mankind's most enduring delusions that nature somehow favors "my" wishes over "their" wishes.

Clearly, if the proposed market value were fair to the owner, he would sell willingly.

And then no eminent domain proceeding would be required.

There is no difference between giving discretion and allowing abuse.

If I accept that as true, then I must either favor total anarchy, not trusting any government at all, or I must accept complete repression at the hands of an arbitrary autarchy. It is simply not possible for the written law to cover all cases properly, and the more the law attempts to specify exactly what should happen in every case, the more we are at the mercy of the government officials who have more power than the common citizens to try interpret the law when it is too complex for everyone to agree on what it means. The only way we can hope for fair and thoughtful treatment is to have laws that set out a few clear principles, government that has the discretion to apply them reasonably, and a mechanism of checks and balances to correct the errors that will occur. Errors and abuse will happen through the misapplication of discretion, yes, but they will happen at least as much through the misunderstanding of laws which become so complex through attempts to legislate away discretion that no one understands them and each case requires years for the courts to explain what the law says.

Even if you insist on one of those alternatives, what I said is true. Granting a power means granting it for whatever purpose its holder chooses to use. For example, a 1942 Supreme Court decision, Wickard vs. Filburn, held that growing crops in your own back yard for your own use is "interstate commerce" because that would allow Roosevelt's New Deal legislation to stand. This sweeping interpretation gave the federal government the "discretion" to claim authority over the personal use of marijuana for medical purposes. When everything is deemed "interstate commerce," that means everything. You don't get a moratorium just because Bush was elected rather than Kerry.

You're correct, though, that life is so complex that it's impossible to cover all cases under written law. That is why the notion that the more complex society gets, the more law we need, is false. Granting the government very broad powers and just a few principles for exercising them will necessarily result in the growth of power to its maximum; the twentieth century demonstrated that in detail.

This is why governmental power must be kept to a minimum, confined to services which cannot be provided in any other way (primarily the prevention and punishment of force and fraud). A law against theft has relatively few opportunities for creative interpretation. A law allowing things to be done for "the good of the community" provides unlimited opportunities for those who decide they're the community.

Granting a power means granting it for whatever purpose its holder chooses to use.

That is only true if that power is granted without any means for appeal or review and if there is no mechanism to identify and punish abuse. The way to limit the power of a bureaucrat is not a list of rules so long that he's the only one who's even read them, much less understands them. True, you can limit his ability to abuse his authority by not giving him any power to do anything at all, but in my world view there is no avoiding the assumption that we actually had a reason why we needed him in the first place.

This is why governmental power must be kept to a minimum

I believe that I am in favor of having no more government than is necessary, but I think we disagree significantly on what functions can't be effectively served except under government control. It is not that I think government control is an ideal situation; I just see it as better than the only alternatives I can see, which are no control at all, control by the whim of whoever has the most money, and control by the whim of whoever has the most physical force.

Libertarians tell us that if we let the private sector have free reign in all things, we would have paradise, but when the private sector is the irresponsible monster that is the modern corporation, nothing could be farther from the truth. While I believe that capitalism is basically a good idea and the current corporate mentality is the outgrowth of some relatively minor mistakes in the way we set set things up, I'm not willing to sign up as a Libertarian until I'm convinced that the current perversion of capitalism can be brought back into balance to genuinely serve the long term best interests of society as a whole. The main problem with government today is not that it has too much control over the private sector, it's that the "private sector" -- that is, the corporations, not the people -- have too much control over the government.

Hold on, you can't put trust and government in the same sentence. Any government. Unless of course that sentence is "I trust the government to screw me over"

Cynical? Me?