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Good news and bad news from New Hampshire on the Kelo precedent

Today the Union Leader reported that a House committee is recommending that the state tighten its laws covering eminent domain seizures. They want to change the laws so that wherever it says "public purpose," it now reads "public use," and "public use" is defined as "the possession, occupation, and enjoyment of the land by the general public, or by public agencies."

This would essentially keep people from taking private property for private development, such as was done in New London and sanctioned by the Supreme Court in the Kelo case. In my opinion, it's appalling that it's needed, but since the Supreme Court made such a wrong-headed decision, it's the duty of the Several States to take their own actions to protect its citizens and their property.

On the down side, though, it could put a serious damper on that guy's plans to take Justice David Souter's Weare, NH home and build a hotel in its place. And that means that one guy is gonna have to pay a bundle to repaint his truck...

Comments (7)

Funny David Souter article ... (Below threshold)

Funny David Souter article on Kelo decision


Similar language has been p... (Below threshold)

Similar language has been proposed as an amendment to the Constitution.

Sign the petition here.

No you are wrong. These su... (Below threshold)
John Ryskmap:

No you are wrong. These substitutions wouldn't change the outcome in a single eminent domain case. "The possession, occupation and enjoyment of the land" are so vague that they simply invite creative evasion. It would NOT "essentially keep people from taking private property for private development. In short, it is impossible to restrict eminent domain using generalities. You have to restrict it with respect to facts. That's why government is restricted with respect to an establishment of religion--because the fact of an establishment of religion is mentioned in the restriction.

If you want to change eminent domain you have to ask:

1. what do you want to protect?
2. from what do you want to protect it?
3. how much protection do you want to give it?

If you want to give a lot of protection to housing, from eminent domain, you want a law which says:

Eminent domain shall not be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government purpose.

That is "strict scrutiny," which is what is currently applied to attempts to establish religion. For more information on the background of Constitution protections, see

Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights, With a Model Complaint Establishing a Right to Housing Under the Due Process Clause of the Fifth Amendment " (July 25, 2005). http://ssrn.com/abstract=562521.

So they can abuse the hell ... (Below threshold)

So they can abuse the hell out of eminent domain only if they're just screwing businesses?

I would add that it isn't a... (Below threshold)

I would add that it isn't appalling that the states have to enact specific laws regarding this issue, or many others. This is the cruxt of states rights.

What is appalling is that states are forced to pass laws specifically limiting the ablity of the federal government from encroching on their sovereign turf. Such as marriage.

The proposed change looks l... (Below threshold)

The proposed change looks like a good start. It is probably not enough.

I think Brad at 10:51 has Kelo reversed. The SCOTUS said the federal government was not concerned and states could do as they wished.
And the states are not going to pass laws limiting the federal government. They cannot do that.

I agree with John. Every government agency in the state will try to negate or evade any limit on ED. So the wording has to be lawyerproof. That can be done, but don't confuse what the house committee says they intend with what they really intend.

I could have sworn public u... (Below threshold)

I could have sworn public use is funded and not even PAID for by the public.

example...state highways are often considered public use, and eminent domain I believe has been used for the construction of new highways.






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