June 18, 2007

Wasting Away Again in Manhattanville

by PG

"Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference." -- Justice Stevens for the Kelo majority.

Searching for my just compensation...

"While our goal is to ensure that Columbia has the space needed to carry out its mission of teaching, research, and patient care in Upper Manhattan in the decades ahead, we also aim to help revitalize economic, civic, and cultural life in a project area that has not thrived in recent decades." -- President Bollinger.

Some people say that it's the lib'rals to blame...

(I'm not quite clear on why Columbia Law conservatives haven't rallied to defend Manhattanville from Columbia's takeover -- perhaps because people on the left have? And more, or maybe less, seriously, what did Justice Thomas mean by the first paragraph of his Kelo dissent? "Long ago, William Blackstone wrote that 'the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property.' The Framers embodied that principle in the Constitution, allowing the government to take property not for 'public necessity,' but instead for 'public use.'" Isn't "necessity" actually a more demanding standard than "use"?)

June 18, 2007 06:00 PM | TrackBack

"Necessity" and "Use" aren't just two values on the same scale, so one isn't strictly more demanding than the others. One goes to the scope of the government's desire, the other goes to the reason for the government's seizure. Thomas's (really, Blackstone's) point is that the government can't have somebody else's property merely because it wants it, even if the government wants it very badly; it can only have it if it attends to use it itself.

So if the government wants property for a non-necessary use (like government-owned national parks), it satisfies a public use test even where it might not satisfy a public-necessity test, and it's true therefore that the Framer's test is not, strictly speaking, always more demanding than a public-necessity test might be, but I don't think Thomas claimed that. He just pointed out that the 20th-century test is the one explicitly rejected, rather than embraced, by Blackstone and the Framers.

Posted by: Will B. at June 18, 2007 08:24 PM
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