« Bob Ellickson on Kelo | Main | Regulation, Public Use, and Just Compensation »
Saturday, June 25, 2005
Kelo and federalism
Kelo | Posted by Ilya Somin at 08:46 PM
Thanks to Marty Lederman for forwarding Bob Ellickson's insightful comments on the case. One of my regrets from my days as a Yale Law School student is that I wasn't able to take a class with Prof. Ellickson.
Ellickson's view of the politics and economics of Kelo-style takings is almost exactly the same as my own (see my earlier post below), yet he still supports the Court's decision on federalism grounds. This raises an important question: Why do conservatives and libertarians like myself, who normally favor federalism and decentralization, support stringent national constraints on local and state governments in takings cases? Maybe we are just inconsistent, but I think not.
Decentralized federalism works well in situations where citizens can "vote with their feet" in opposition to policies that oppress or harm them. If I think Virginia taxes are too high or its public services too inefficient, I can move to another jurisdiction where policies are different. Such interjurisdictional competition places real constraints on many abuses by local and state governments, because they fear losing residents and the tax revenue they produce.
Unfortunately, however, property rights in land are different. By its very nature, land is immobile. Therefore, voting with my feet won't help if the City of Falls Church (where I live) decides to condemn my home. To be sure, abusive condemnation policies might deter new homeowners from moving into the city. Nevertheless, the city still has a substantial captive market in those property owners who already live there, and incumbent politicians may not care if their abusive behavior hurts them only in so far as it causes reduced in-migration by potential future residents - a circumstance that probably won't have a major effect until several years have passed (by which time these particular politicians will probably be out of office anyway).
As Bob Ellickson suggests, abusive condemnations might be curbed by state courts, and there are indeed about a dozen states that forbid Kelo-style condemnations and others that restrict them. However, most state judges are elected, and the electoral process is often influenced by state party machines and interest groups (even more so than with other elections). Therefore, there is a danger of "capture" of state courts by development interests, just as - according to Prof. Ellickson himself - they often capture the eminent domain processes of local governments. Such "capture" is much less likely in the case of federal courts.
For these reasons, people like myself who generally favor competitive, decentralized federalism can at the same time favor stringent federal judicial review of public use cases.
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Comments
The argument that people can vote with their feet in opposition to tax policy but cannot vote with their feet in opposition to Kelo-style condemnations ignores a crucial point: it's the same people, with the same feet. The same financial and emotional investments in their homes and communities that make it difficult for people to casually move to another jurisdiction do not magically disappear depending on the particular category of offensive policy or action.
Nor is interjurisdictional competition differently affected by the reasons why people leave. When Homeowner A leaves Jurisdiction B, Jurisdiction B has lost A's tax revenue, but A's land and home is still in Jurisdiction B. That is true whether A left in protest of B's tax policies, or in protest of B's eminent domain actions, or because of a direct eminent domain action against A. The balance of political power between A and B is affected both by A's ability to take his future tax revenue elsewhere and by A's inability to take his land elsewhere, regardless of the nature of their political interests.
Posted by: Michael at June 28, 2005 10:44 AM