I am OK with this one. It is in the category of a stopped clock is right twice a day.

In my view the theory of incorporation of the bill of rights into the 14th Amendment is a crock. Therefor, in my view, the takings clause does not apply to the states and the judgment in Kelso is correct for the wrong reason.

If the condemnor had been the Federal Government, I would have thought the judgment wrong. There the takings clause should be read in conjunction with Art. I Se. 8. The only provisons of that section which allow the Federal government to acquire properties are:

"To establish Post Offices and post Roads;

"to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;"

Which define the public uses referred to in Amend V.

"nor shall private property be taken for public use without just compensation."

But is a hotel and marina public use?

Only if you can afford it.

Sandy;

No, it was never claimed that those were public use. It is the taxes generated that are the public use. As one wag noted, it used to be that governments spent taxes on promoting the public good. Now, taxes themselves are a public good.

Very blue statish, it's no wonder OJ is in favor.

"...the plaintiffs here made a mistake in arguing against takings...instead of for just compensation."

I thought they argued against 'public purpose' as opposed to 'public use'. A 'public purpose' can be anything from tax revenue to self-esteem to Bad Hair Day Prevention Awareness. If a state banned guns, would we only argue for the right to to join a militia and not the right to keep and bear? Why only half the sentence? They shoudn't have to argue for just compensation, anyway--that question was resolved when the Bill of Rights was ratified.

This ruling will make it harder to get just compensation anyway.

Noel:

The militia language does make the right to keep and bear conditional.

Noel, OJ: Fair Compensation was not an issue. No one was arguing about the compensation. The issue is the public use limitation. SCOTUS held that it doesn't mean anything.

I say public use is not a limitation on the states, but that it is a limitation on the Federal Governement which has the power to aquire real property only in the following circumstatnces:

1."To establish Post Offices and post Roads; and

2. "Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;".

Hmmm.

So if the property is taken for a public purpose (economic revival of New London) and the purpose does not eventuate (N. London continues dull), can they demand their land back?

I am an admirer of Professor Callies but that Star-Bulletin story left out all the relevant facts.

The political intent may have been to break up a giant landholder, but the leasehold conversion law was a blunt instrument and was also usable against mom-and-pop owners of 6-unit apartments.

It's intelligent design--it'll be messy.

oj,

I think Adams inserted the militia language. He didn't want gangs of private armies with no loyaltyt to the state roaming the countryside. Perhaps he was thinking of Shay's Rebellion or the potential mutiny of the officer corps at Newburgh.

But I read that sentence as a well-ordered militia being contingent upon an armed, loyal populace--not as the right to keep and bear contingent upon current service in a militia.

But your now reading the whole sentence; that was the point.