By now you’ve all heard about the Kelo case, which removes most restrictions on government from using its “eminent domain” power to take private property. It has been discussed too widely on the blogs to be worth my linking, and so if you’re interested, and you haven’t read enough about it yet, go visit the usual suspects.
But I would like to mention one possible result of Kelo that will sound like a parody, but, alas, probably isn’t. I was prompted to this thought by something Orin Kerr wrote on Volokh:
The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless
“By now you’ve all heard about the Kelo case, which removes most restrictions on government from using its “eminent domain” power to take private property. ”
One way to see the decision is as a federalism decision: states are still free to impose their own definitions of public use — so long as they are stricter.
actus,
Stricter than what?
Really, I’m astonished to see so many on the Left taking this decision with such equanimity. I would have thought that the idea that razing a family home in order to turn the land over to Pfizer and calling that “public use” on the grounds that Pfizer would bring in tax revenue would raise liberal hackles, but evidently it doesn’t.
I wonder, frankly, how much of the reaction is conditioned by which justices were in the majority, and which dissented. Dare we be on the side of Rehnquist, Scalia, Thomas, and O’Connor?
Anyway, actus, this is not a case about federalism; it’s a case about an incorporated clause of the Bill of Rights. If the States don’t get to come up with individual interpretations of the First Amendment, why should states (or municipalities) get to do do so with this one?
Oh, Lord. Sorry. Pontificate on grammar, and next thing you know the grammar gremlins are merrily at work.
I would have thought that the idea OF [not “that”] razing a family home in order to turn the land over to Pfizer[,] and calling that “public use” on the grounds that Pfizer would bring in tax revenue, would raise liberal hackles[,] but evidently it doesn’t.
Commas added as well.
I plead insufficient caffeination. Going off to rectify that now.
“Anyway, actus, this is not a case about federalism; it’s a case about an incorporated clause of the Bill of Rights. If the States don’t get to come up with individual interpretations of the First Amendment, why should states (or municipalities) get to do do so with this one?”
States can have their own state constitution based limits on takings. In the first amendment context, some states have their own constitutional protections of speech, which sometimes have been read to protect greater speech conduct than the federal first amendment.
But this is a clause that sets a nationwide minimum. One way to read this is that it leaves states free to decide that if they want loose or strict limits on takings, as its mostly states and localities doing these takings.
I think most liberals are upset. I am conflicted. I like how this hands over power to democratically elected legislatures. But I also know that they are in the pockets of the rich.
Anyone who knows anything about local Gov’t should be on the phone to their state legislator urging him/her to propose a strict constitutional amendment. In Fl. we already have a case where the city is will to take a long standing and still productive family business for the purpose of turning it over to a condo developer – just what we need…more condos, fewer businesses
actus,
But this is a clause that sets a nationwide minimum. One way to read this is that it leaves states free to decide that if they want loose or strict limits on takings, as its mostly states and localities doing these takings.
Funny, I just emailed a response to a fine lawprof blogger who said just what you did. actus, as I understand it, the Bill of Rights is a list of rights the people hold against the government.
The “nationwide minimum” (now that the clause is incorporated, via the 14th Amendment) is that private property taken via eminent domain must be (a) for “public use”; and (b) “justly compensated.” A state might protect the individual further than that, by (say) requiring public hearings, or compensating above market value, or including relocation assistance, job placement, &c. in addition to the “just compensation” for the property itself.
But the “minimum” includes “public use,” and handing over a property to a private company for private development in the hopes of more tax revenue is falling below that standard, not rising above it. It’s giving the government more power than it has under a plain reading of the clause.
Really, actus, if a state were to decide that “freedom of speech” really meant only “political speech” (as Robert Bork argued decades ago, before concluding that it was impossible to separate political and nonpolitical speech), would it be okay with you? Or would you rather that the same First Amendment applied in all the states?
But the “minimum” includes “public use,”
The case is about the definition of “public use” in the federal constitution. The feds have read it broadly, to mean a lot of things. I understand that you don’t like this. But states can go in and write their own limits on takings, so long as they are not broader than what the feds have.
This is how this is a ‘federalism’ question. The states are free to have broad or narrow enactments of their own public use requirements.
“Really, actus, if a state were to decide that “freedom of speech” really meant only “political speech” (as Robert Bork argued decades ago, before concluding that it was impossible to separate political and nonpolitical speech), would it be okay with you?”
That would infringe on the minumum set by the federal constitution. Just as if a state decided that pure, arbitrary transfers are ‘public use’ would be an infringement of the Kelo decision’s “public use.”
actus, so far as I understand it, the federal government has never before interpreted “public use” to include a private entity that was not a common carrier (like a railway) or a general-use public facility (like a stadium).
I don’t think the majority opinion gave a Federal example of eminent domain being used, as it was here, to transfer property from private party A to private party B without B’s ostensible purpose being building something accessible to all citizens.
Show me a counterexample — a clear example of eminent domain being used to transfer private property to a private developer that is not a common carrier or a public conveyance — and I’ll concede. As it is, it looks to me as though this is a massive change in the law, not the little twiddle you take it to be.
” As it is, it looks to me as though this is a massive change in the law, not the little twiddle you take it to be.”
I don’t know enough about federal takings jurisprudence to tell you whether this is a massive change or not.
But what I can tell you is that states are free to enact their own laws and constitutional amendments (to their state constitutions) that have heightened public use requirements. States can bind themselves more than the federal government binds them. That’s how i see it as federalism: the states are free to bind themselves less now, though they may choose not to.
actus,
If you were to see the Supreme Court drastically restrict the categories of “speech” it regarded as under First Amendment protection, or the categories of searches prohibited by the Fourth Amendment, would you be placated by the thought that the states had it in their power to make it all fine again? The fans of Roe v. Wade certainly don’t seem to feel that way about their decision of choice (no pun intended).
“If you were to see the Supreme Court drastically restrict the categories of “speech” it regarded as under First Amendment protection, or the categories of searches prohibited by the Fourth Amendment, would you be placated by the thought that the states had it in their power to make it all fine again”
Its not a placation. Just a way to see it. Some people value increased federalism. I think we should take an instrumental approach to federalism: go with the allocation of powers that promotes freedom. sometimes that means federalizing murder prosecutions in philadelphia mississippi. sometimes that means restricting federal power to spy on citizens.
actus,
And “going with the allocation of powers” that allows Pfizer to bulldoze someone’s home for its own purposes “promotes freedom” how, exactly?
actus, I prefer governmental powers to be reasonably spelled out, not granted or withheld on the basis of whether you or anyone else believes they “promote freedom.”
Kelo seems to let a state agency or locality do almost anything with private property. I believe Utah restricted ED about 5 years ago. But I am not sure.
I believe Congress can define “public use”, or at least try, and negate Kelo. There is no penalty for trying, and it should be addressed.
Otherwise it is up to state governments to restrain the ED powers of localities. That is a cheerful prospect.
This is a very bad decision which can lead anywhere. It appears that your local school board may decide teachers need a raise and take your property to open a McDonalds.
In fact, the school board members could be given the land and open the McDonalds themselves – all that is needed is a plan expected to bring in revenue.
“And “going with the allocation of powers” that allows Pfizer to bulldoze someone’s home for its own purposes “promotes freedom” how, exactly?”
I don’t think it does. I think we should in general be de-powering the rich and powerful.
“actus, I prefer governmental powers to be reasonably spelled out, not granted or withheld on the basis of whether you or anyone else believes they “promote freedom.”
I think reasonably spelling them out promotes freedom too. I think we spelled out the ones we have because we feel that way about them.
actus,
I think reasonably spelling them out promotes freedom too. I think we spelled out the ones we have because we feel that way about them.
Well, yes. One more time: If you think states should be able to define “public use” as they like, why not “freedom of speech,” “establishment of religion,” “unreasonable searches and seizures”?
Don’t think that redefining “public use” as “anything increasing property tax revenue” is a recipe for massive “condemnation” of properties that aren’t bringing in quite the property tax revenue they might if transferred to other hands? I repeat that I don’t understand why the Left is so blasé about Kelo, unless it’s that they don’t like being on the side of Scalia, Thomas, Rehnquist, and O’Connor.
If you think states should be able to define “public use” as they like, why not “freedom of speech,” “establishment of religion,” “unreasonable searches and seizures”?
They can already. So long as they don’t go lower than the federal minumums. A supreme court decision that lowers those minimums gives states a greater range to legislate in those areas, and thus can be seen in a federalism light.
Its not that I thikn states should be able to do it. Its that I think one way to read this decision, for those all sorts of horrified, is that it leaves it up to the states. Now, some people value state government and federalism per-se. I don’t.
I’m also interested in how people who often talk about how counter-majoritarian the court is are in a tiff over a very pro-majoritarian decision.
actus,
They can already. So long as they don’t go lower than the federal minumums. A supreme court decision that lowers those minimums gives states a greater range to legislate in those areas, and thus can be seen in a federalism light.
Ooookay. So if the SCOTUS were to redefine “freedom of speech” as referring solely to political speech, the response of the Left would be that if the states wanted more expansive definitions they could just make their own, no biggie? That if Roe were overturned, for that matter, the response of the Left would be that states could just enact their own abortion laws, no biggie?
actus, the point is that the “federal minimum” just had the bottom drop out of it. The normal reaction of people concerned about small homeowners about to have their homes bulldozed to make way for corporate complexes would be some degree of interest, if not alarm. Instead there’s next to nothing. Evidently Pfizer is a hateful pharmaceutical giant only when it’s advertising or setting prices, not when it’s turning people out of their houses.
The Left hasn’t condemned it because it intends to employ it to rob Peter to pay Paul. Have beach front property owned by middle class folks when you could have high raises put up? Guess what will happen? As to fair value who decides this since the free market is gone?
Worse can one imagine what will happen to churches, Boy Scout pro[erties, gun ranges, shooting perserves and the like when a jurisdicition like NYC, Portalnd, Detroit, or San Francisco gets through with them?
Time to prepare to defend your rights.
actus,
I think I understand your point. You’re not worried about Kelo — or perhaps not so much you (it’s hard to tell) but the other lefties who aren’t worried — because all the states in which poor people, middle class homeowners, and small Mom and Pop shop owners are better represented and stronger in the state legislatures (and city councils and planning boards) than large developers and big corporations can simply pass laws protecting themselves.
Er, which states and cities (other than Berkeley, Madison, etc.) would those be?
John, your comments in “addendum” are most apt. One need only let one’s imagination run wild to think of what kinds of “public purposes” are out there, waiting for the government to recognize and do what’s necessary to implement.
I believe that why some liberals are not outraged by this is because of their underlying belief that, (except when it comes to topics like war) – the government does seem to “know better” than the hoi polloi as to how society ought best be run.
The government is necessary to make certain the “right” development occurs, that the “proper” mix of races is evident in schools and the workplace … Look at more efforts to force people to eat and drink what the government believes is in their own “best interest” to ingest.
I won’t go into all the reasons why I think this trend is both frightening and damaging to our way of life. I just hope that we can get some new justices on the Court, and revisit some of these issues down the road!
I wonder how long it will take someone political organization to use the ruling as a backdoor to repaprations. Just take the property of whites and pay them nothing because it is “just” and thus no “compesation” is needed.
“I think I understand your point. You’re not worried about Kelo”
I didn’t say I wasn’t worried about Kelo. I quite clearly said I think we should be de-powering the rich. I just think that there are ways in which Kelo is not the end of the world. I’m not very popular among my leftist friends for saying this.
“So if the SCOTUS were to redefine “freedom of speech” as referring solely to political speech, the response of the Left would be that if the states wanted more expansive definitions they could just make their own, no biggie? That if Roe were overturned, for that matter, the response of the Left would be that states could just enact their own abortion laws, no biggie?”
That would be one way to look at this. But the problem is some states have their heads in their asses about free speech and reproductive freedom. So yes, a biggie.
But I didn’t say no biggie in this case.
I don’t know how much of an expansion of federal takings this is. Poletown happened pre-Kelo.
Actus doesn’t mind, because he can see some liberal ways to use Kelo in “depowering the rich.” This is actually a classic definition of modern Democtratic politics.
It’s important to understand and distinguish the difference between government programs that “depower the rich” and those that “empower the poor.”
By the way, true “liberals,” in the classic sense, are against Kelo. They understand that the danger to liberty of a corporatized Democratic taking is no different than the danger of corporatized Republican taking. This is why you find this those on the principled left and principled right in agreement on this, and “mainstream” politicians who love this expanded tool in favor of Kelo.
Actus doesn’t mind, because he can see some liberal ways to use Kelo in “depowering the rich.
I don’t see how, as it requires compensation.
Yeah, but we can work on that, actus, especially if we get the correct kind of judges on the SCOTUS.
“Yeah, but we can work on that, actus, especially if we get the correct kind of judges on the SCOTUS.”
But scotus wouldn’t be making factual determinations
No, this isn’t about “depowering the rich.” It would be more correct to say that it’s about shoring up cities’ tax bases.
actus, of course the cities will have to compensate the property owners, and that’s a disincentive, sure, but given that they don’t apparently have to compensate according to the terms a private company wanting to purchase the property for its own use would ordinarily have to meet, but only what one homeowner would expect to pay for a house when another vacated it, based on similar properties that (oh, say) Pfizer didn’t desperately want, all that’s happening is that the city is giving Pfizer a gift of the difference between what it might have paid in negotiating with the homeowner and what an ordinary home purchaser might have paid had the owner wanted to sell, which by hypothesis he didn’t, because these were not houses offered for sale.
Yep, the city has to compensate for the transfer of title, sure. But property tax is the gift that keeps on giving, isn’t it? Replace a bunch of lower-middle-class neighborhoods with industrial parks, and who knows what fun you might have? Especially in CA, where the instant revenue, er, enhancements from even a little of this jiggery-pokery might be very large, carried over a few years.
Sorry, but I can’t think this is a positive development. And it still astounds me that people who spend so much time railing against “corporate welfare” and especially against corporate welfare given to pharmaceutical companies are so danged blasé about this.
“Sorry, but I can’t think this is a positive development. And it still astounds me that people who spend so much time railing against “corporate welfare” and especially against corporate welfare given to pharmaceutical companies are so danged blas
Perhaps Actus should read this article in the Minneapolis Star Tribune today:
http://www.startribune.com/stories/535/5477200.html
He came to Minnesota in 2000 to expand into the Twin Cities’ burgeoning Hmong market, paying more than $2 million for the former Northbrook Shopping Center. With his grocery store, fabric shop and a coin laundry anchoring the strip mall, business grew 300 percent and vacancy rates dropped, according to Vang, 31, who manages the center.
In 2002, Lee and Brooklyn Center officials began planning a Little Asia complex in the area. More than $100,000 in public money was spent on feasibility and market studies.
Those plans grew to a $60 million vision that would have made Brooklyn Center a destination spot, but those lofty dreams eventually died. McCauley said Lee and Vang wanted to turn a $6 million profit on the aging property on which they had made no improvements.
Lee and Vang said they spent more than $200,000 on several designs, including the housing development the city wanted.
“We understood this was going to be friendly, taking in consideration for our proposed development on our land,” Vang said. “But things became very hostile.”
Marc Manderscheid, Brooklyn Center’s lawyer, said the city wants to separate the steps of acquiring the site and selecting a developer.
“Mr. Lee is certainly welcome to make an offer to be the developer and I wouldn’t be surprised if the plan ultimately selected looks a lot like what they’ve proposed,” Manderscheid said.
But Vang said other developers can now study what has been proposed and benefit from all the work Lee did and the money he spent.
The title to the land was transferred to Brooklyn Center in April, and Lee has collected the $3 million, city-appraised price for the land that he hoped to sell for $4.6 million. “All we’re asking for is fairness,” Vang said. “If you own a $500,000 house and they give you $300,000 and say: ‘Well, we’ve given you something, you should be happy,’ that’s not fair. Mr. Lee wants his land back and the opportunity to do something on it.”
“Perhaps Actus should read this article in the Minneapolis Star Tribune today:”
Is it about pre-kelo takings?
Interesting article. I’m puzzled that the city can claim that the property Lee bought five years ago for $2 million is now worth $3 million by the city’s own estimation, despite Lee having made “no improvements.”
actus, this is pre-Kelo. There was mention of the city considering the property “blighted,” which of course has been used as a justification for this sort of “taking” (cf. the Poletown case you keep mentioning). The difference with Kelo is that in that case there was no allegation of blight, let alone finding of it. It was just a . . . what was the word the NYT used? — ah, yes — “faded” neighborhood. I suppose I live in one of those myself.
(How a property can be “blighted” with 300% increase in business in a few years and falling vacancy rates beats me, btw. )
Todd Zywicki on the Volokh Conspiracy linked this morning to a Houston Chronicle (I think) article about Freeport, TX, which is ecstatic over Kelo because now it can go ahead with its plans to seize a bunch of prime real estate from a couple shrimping companies and build a luxury marina. I’d link to it, but can’t seem to get into VC now. They’re probably all blogging the Supreme Court simultaneously. Sorry.
“I’m puzzled that the city can claim that the property Lee bought five years ago for $2 million is now worth $3 million by the city’s own estimation, despite Lee having made “no improvements.””
Here in DC that property would be considered to have underperformed the market.
“Todd Zywicki on the Volokh Conspiracy linked this morning to a Houston Chronicle (I think) article about Freeport, TX, which is ecstatic over Kelo because now it can go ahead with its plans to seize a bunch of prime real estate from a couple shrimping companies and build a luxury marina”
So Kelo has at least equalized the “blight” label to apply to all of us.
But I thought texans respected property?
actus,
Ah, got into VC now.
The article’s here.
So Kelo has at least equalized the “blight” label to apply to all of us.
Um . . . interesting way of spinning that, actus. “Defining Blight Up,” is it? Everything ought to belong to the candidate for ownership who can pay the highest property taxes? As I said, it’s only a matter of time (probably not much time, either) before some bright CA municipality discovers that it’s the perfect answer to Prop. 13: Just condemn everything that hasn’t changed hands in awhile (and hence isn’t generating much tax revenue) and hand it over to developers. What fun!
People to be evicted, at a guess: mostly elderly folks who bought their homes a long time ago, and struggling businesses with some decades of presence here. People to supplant them: wealthy folks who covet waterfront access, great views, and the like; and large companies, megastores, and the like.
I remain mystified as to why you approve of this. I realize that it was all too easy to “prove” a neighborhood is “blighted,” pre-Kelo, but that’s no excuse for standing by while a bad situation becomes worse.
“I remain mystified as to why you approve of this. I realize that it was all too easy to “prove” a neighborhood is “blighted,” pre-Kelo, but that’s no excuse for standing by while a bad situation becomes worse. ”
well, I (1) Don’t think its gotten much worse, I mean, poletown happened, this looks like that. and (2) think its quite well supported that legislatures, not courts, determine public use, and really don’t want that overturned, becasue it underpins lots of things, such as general economic regulation.
I have a hard time seeing what has changed, basically.
I’ve even read some loons saying that the constitution is silent on the taking for private use. Don’t know what’s up with that.
actus,
[I] think its quite well supported that legislatures, not courts, determine public use, and really don’t want that overturned, because it underpins lots of things, such as general economic regulation.
You really want “public use” to mean “anything a legislature chooses to call ‘public use'”? What’s the phrase doing in the amendment at all, if it can in practice mean “anything a government feels like doing”? I have a strong objection to treating words in the Bill of Rights as though they mean nothing at all. (And before you ask, yes, that does include the Ninth and Tenth Amendments, but since they don’t enumerate rights, they’re a lot harder to deal with in actual situations.)
But this:
[ . . .] it underpins lots of things, such as general economic regulation
is the key, right? It’s the same reason the liberal response to the medical-marijuana decision was so muted: “Sure, we want medical marijuana, but if we can get it only by restricting the definition of ‘interstate commerce’ to . . . well, ‘interstate commerce,’ all sorts of other things we want to do will become unconstitutional. So, sorry, cancer patients. Better luck next life. You can always move to Canada, after all.”
I’ve even read some loons saying that the constitution is silent on the taking for private use. Don’t know what’s up with that.
“Loons” plural, or “loon” singular?
Oh, Jeez, actus. For anyone else still following this, right after Kelo I posted somewhere in a discussion of the decision (not here — at least I couldn’t find it in this thread, and as I was very much interested in the case I was following it and commenting on it in many places) a flippant remark to the effect that, technically, a requirement that the government not take private property for public use without just compensation, read as an ordinary sentence in the English language, said exactly nothing at all about taking private property for private use (compensated or not). Obviously the latter is understood to be banned, and I believe I did say so immediately afterward.
I’m curious who your second loon is, though, and whether the argument is advanced seriously. Do tell.
“You really want “public use” to mean “anything a legislature chooses to call ‘public use'”? What’s the phrase doing in the amendment at all, if it can in practice mean “anything a government feels like doing”?”
I don’t think it means that. I think it means legislatures have very wide berth in deciding what teh public interest is — they are elected to do that. But I still think naked rent-seeking when there isn’t a public interest (say, if I were to turn a marina into blight) won’t work.
“It’s the same reason the liberal response to the medical-marijuana decision was so muted:”
Because the law is clearly constitutional. which doesn’t mean its a good law. Congress is wrong to pass it. Don’t like the law? toss congress out of power. You have my vote on getting rid of those prohibitionists. I think this is something that right and left can agree on.
But you’re right. it is the key. for just about a hundred years we’ve had the idea that legislatures speak with a lot of power when they speak to what is in the public interest. And it is what allows us to protect ourselves from the deprivations of laissez-faireist judicial activism.
actus,
I still think naked rent-seeking when there isn’t a public interest (say, if I were to turn a marina into blight) won’t work.
“Won’t work”? You mean, you’d want the courts to toss it out? You’d trust their judgment as to what is in the “public interest” and what isn’t?
Or do you mean only that no city government could be so corrupt? ;-)
(How about turning an industrial park into a “faded” lower-middle-class community, by the way? Beyond the pale, or not? Would you say that such takings are in the “public interest” only if they increase tax revenue or raise the income level of the people living there — who, I hasten to add, aren’t necessarily the same people as the ones being evicted?)
As for medical marijuana, I don’t agree that the ban is “clearly constitutional.”
“”Won’t work”? You mean, you’d want the courts to toss it out? You’d trust their judgment as to what is in the “public interest” and what isn’t?”
I’d trust my judgement that there is no way that such a thing is in the public interest.
“Would you say that such takings are in the “public interest” only if they increase tax revenue or raise the income level of the people living there
actus,
You still aren’t explaining who gets to decide what’s the “public interest.” You know very well that plain old graft and corruption has worn the “public interest” mantle in city and state government for ages. That pretty well leaves the courts, and yet you don’t want the courts determining “public interest” either.
I have a hard time seeing something being in the ‘public interest’ where the benefit is to a small group AND the net public effect (eg, on tax revenue) is a cost, not a benefit[.]
Well, let me try. Group of refugees from Country X, hastily housed in gimcrack buildings far from anywhere they could work or integrate themselves into the surrounding society, are rehoused in urban apartment complex condemned by the city. Building taken over by a non-profit corporation. Net public effect, in tax terms: loss. Number of beneficiaries: small. Positive benefit to general public: potentially very large.
I realize that you’re going to say that this is “public interest” by definition, because I say the public will come out better under it. But someone else might say otherwise. And, again, someone has to decide who’s right, yes?
Actus, I don’t understand your response to my quoting you that you want to “depower the rich.”
You quote me quote you, and then you say:
I don’t see how, as it requires compensation.
If you mean the takings clause requires compensation, that is true, but 1) government’s have historically undercompensated people 2) if two private entities are competing for real estate (or other property subject to takings), why should the government be able to choose amongst them, just because it believes (like good old “industrial policy”, government often makes bad choices, or even outright corrupt ones). The direct effect of this decision is to empower, at best, special interest political lobbying, and at worst, government corruption – while it simultaneously depowers the market and individual decisions.
Michelle, when Actus says this decision “underpins” all sorts of other economic regulations, that’s what I think prompted this mostly left coalition of Justices to accept the ruling. Justice Thomas’s laundry list of takings against the poor were all by city mayors (usually Democrats) cutting special deals with corporations.
“You know very well that plain old graft and corruption has worn the “public interest” mantle in city and state government for ages. That pretty well leaves the courts, and yet you don’t want the courts determining “public interest” either.”
I thikn that the courts should follow this century of precendent, and grant legislatures fairly wide latitudes.
“Positive benefit to general public: potentially very large.”
There you go then.
“I realize that you’re going to say that this is “public interest” by definition, because I say the public will come out better under it.”
I’m going by what you told me.
“But someone else might say otherwise.And, again, someone has to decide who’s right, yes?”
Ya. Elected representatives or unelected judges? I’d say we have the unelected judges giving wide latitude to the elected representatives.
“Justice Thomas’s laundry list of takings against the poor were all by city mayors (usually Democrats) cutting special deals with corporations.”
Weren’t those all pre-Kelo?
Chetly Zarko,
Your account is pretty well how it looks from here. What I still don’t know is how this is going to shake out in CA. We have massive amounts of property here that hasn’t been reassessed in decades, and under Prop 13, the only way to get it reassessed is by getting its title transferred. I hope we don’t have a Kelo onslaught here, but it wouldn’t surprise me.
actus,
“Justice Thomas’s laundry list of takings against the poor were all by city mayors (usually Democrats) cutting special deals with corporations.”
Weren’t those all pre-Kelo?
Well, of course they were. You can call any neighborhood “blighted” as long as mostly poor people live in it, just as you can call any store “blighted” so long as mostly poor people shop at it. The Kelo innovation is that you don’t even have to do that.
What, I wonder, will it take to get liberals upset at an unrestrained and overreaching government?
They’re not upset at govt practicing racial discrimination when it serves what they regard as a good public purpose.
Now they’re not upset at govt. taking private property when it determines that another owner could put it to uses that would better serve the public.
Do liberals believe that we the people possess any rights (what a quaint word that is becoming!) that the government cannot override when it believes doing so would serve a public pupose?
If so, what are they, where can they be found, and how are they different from the right to be free from racial discrimination and the right to private property?
“Do liberals believe that we the people possess any rights (what a quaint word that is becoming!) that the government cannot override when it believes doing so would serve a public pupose?”
Can you really not think of any? have you been paying attention to the patriot act reauthorization debate?
John,
I know several “principled” liberals that see Kelo as an abomination. I’m also sure that there are some mainstream “conservatives” that are loving Kelo’s possibilities, as well.
This decision was orthogonal to the traditional line between liberal and conservative. Its about government power – primarily local government power over the individual. Although I’m an advocate of state’s rights when a federal issue isn’t involved (we’ve expanded that one too), I’m first an advocate of individual rights when the state has no proper place in a situation. Our Constitution did a great job controlling federal power, but if we have 50 fascist regimes, its little good (not that I think its that bad, but the point is that more work is to be done on this front). The Bill of Rights was almost an afterthought to protect individuals, and some fear that the enumeration of individual rights would lead to a strict construction against non-enumerated but still otherwise natural rights (of course, no document could conceivably address all possible situations, rights, or future condition changes). Nonetheless, I still don’t believe judges ought to interpret the Constitution as they think it ought to be, because that approach is too dangerous as well. Actus does have a point that some of the Kelo battle has to be done politically – the answer to your question in this post then, is that what prevents government from diversity-based Kelo takings or even extreme run-of-the-mill takings is that the political outrage of such a personal invasion by the government would prevent rational politicians from going that far (I also think the Supreme Court wouldn’t go that far, either, but that’s always a nine-person crapshoot). This is essentially why student desegration busing failed in the 1970s – it was too much of an intrusion into the personal choices of individuals. I’m sympathetic to the desire of policy makers to desegregate society, but as with all policy, the policy must be designed to have as little intrusion as possible (consider this a sort of “narrow tailoring” test). Traditional admissions race preferences fail this test (and others) because the intrusion into a person’s racial identity isn’t necessary at all to accomplish legitimate governmental ends of ensuring equal opportunity (alternatives like outreach, financial programs, and the raw hard work of helping the underperforming schools improve your pool; are all more effective anyway).
Maybe the difference between liberals and conservatives is simply how expansive (liberal) they are on interpreting what a “compelling interest” is?
By the way, Actus, the Patriot Act debate is less of a question of whether national security is a compelling interest or the types of government actions are “a priori” wrong than it is properly put (which I believe even most serious Democrats in Congress understand) as whether the government is narrowly tailoring its activities to minimize intrusion into the privacy (4th-5th Amendments) rights of citizens. As to the rights of non-citizens, I don’t believe the founders or rational government (founded primarily, first and foremost, for self-defense of the governed) contemplated that they would be subject to the same rules (I will concede that there are human rights and international treaties that transcend American law, but that’s not as stringent as American rights). On that note, I think there have been some excesses (beyond proper tailoring) with the Patriot Act, and we should hold the governmet up to the light for that.
What, I wonder, will it take to get liberals upset at an unrestrained and overreaching government?
Lots of things get liberals upset at an unrestrained and overreaching government. (*) The problem is that because liberals view government as the be-all-and-end-all of society, they transfer their anger from government to the particular people in office.
A libertarian or small-government conservative — like the founding fathers of this country — looks at an abuse of power and says, “That’s terrible. We need to take power away from government so this sort of thing won’t happen again.”
The liberal says, “What?!? If we do that, then government won’t be able to do all the things I want it to do. This abuse is terrible, so we need to organize the grassroots to get these guys out of office and put good people into office who will only use government for good and not for evil. In the meantime, if people with cancer have to get screwed to protect the snail darter, then screw them.”
(*) Actually, to be fair, most liberals I’ve read are horrified at the Kelo decision. The only ones who approve of it are the liberal elites — the inside-the-beltway crowd, the editorial boards of the Washington Post and New York Times, etc. — who know that their homes will never be in danger.
“the editorial boards of the Washington Post and New York Times, etc. — who know that their homes will never be in danger.”
Interestingly, Kelo does some to equate the homes of the better off to those of us who live in blight.
actus,
Except it doesn’t, really. Except possibly in CA, where someone who’s lived for a long time in one place may be well-off but bringing in rather little property tax revenue.
But if you want to see how eager cities are to leap on Kelo, try
http://www.ij.org/private_property/connecticut/6_29_05pr.html
What’s it been, a week? They’re not wasting much time, are they?
I should have added that if you look through the list and note the types of property-owners on the losing end of this, you will probably be able to conclude that they do not include members of the NYT or WP editorial boards. Or, for that matter, many people in their tax bracket.
“Except it doesn’t, really. ”
It does from the judicial perspective. From the legislative one you still have problems of plutocracy and class. Which we should definately work on.
The problem of the influence of the wealthy, of corporate power in politics? No right/left divide there.
actus,
It does from the judicial perspective. From the legislative one you still have problems of plutocracy and class. Which we should definately work on.
actus, again, what Kelo does is effectively define increased property-tax revenue as “public use.” The very wealthy aren’t going to see this law in action in their neighborhoods whether they have influence on the City Council or not (though, of course, they’ll likely have that too), for the simple reason that it’s relatively unlikely that their current use of the land they own is less profitable than whatever the City Council might think of to substitute for it.
(The one exception that occurs to me, besides Prop. 13, is the sort of landowner who buys up open space purely for the purpose of preventing other people from developing it, preferring it to remain wilderness. What do you feel about that, actus? If a guy with a lot of money wants a forest, and buys one, but the city is cash-strapped and would prefer a Cost-Co, you’d give ’em the Cost-Co?)
I think, if anything, Kelo lowers rather than raises the fraction of eminent-domain cases that will in any way inconvenience anyone with real money. At least the old style of eminent-domain case occasionally involved land vitally necessary to a genuinely public project that couldn’t be done any other way. There might be only one way to route a railroad, only one feasible place to build a bridge. In that sense anyone might be stuck with a forced buyout.
But the more the criterion becomes “how much more revenue can this land be made to bring in?” the more it’s going to be a hunt for people living on prime real estate, or rather real estate that would be prime if only there were a Circuit City or an industrial park or a luxury condo complex on it, but which has instead the misfortune to be inhabited by boring working stiffs with smallish paychecks. The only difference now is that it used to be necessary to prove that the neighborhood was an actual danger to the community — “blighted.” Now all you have to be is sitting on land that would bring in more taxes if someone else owned it.
The problem of the influence of the wealthy, of corporate power in politics? No right/left divide there.
And there I thought the single largest infusion of cash into American politics in some time (maybe in history, not sure) was from George Soros. Wrong?