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Friday, June 24, 2005
Why Kelo was wrongly decided
Kelo | Posted by Ilya Somin at 11:37 AM
Just to stir things up a bit, I'm going to summarize the two most important reasons why I think Kelo was wrongly decided. Obviously, this can only be a brief summary of a complex set of arguments. For a more detailed statement of the case for banning economic development takings, see my article here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=677763
I. Original meaning.
Justice Thomas' dissent does an excellent job showing that the original meaning of "public use" was either actual public ownership of the condemned property or at the very least a legal right of access by the public (as in the case of takings for railroads and other common carriers). It did not mean a mere potential benefit to the public, which is why the text does not use a term such as "public purpose," which the Kelo majority uses interchangeably with "public use." Many state supreme court decisions explicitly distinguish between "public use" and "public purpose" (I can provide cites to anyone who may be interested), and the US Supreme Court should follow their lead.
The majority cites late nineteenth and early 20th century Supreme Court decisions that seem to suggest that "public use" and "public purpose" or "benefit" are synonymous. However, not only are these statements mostly mere dicta (as Thomas points out), but the decisions in question are not even about the Takings Clause at all. As my colleague David Bernstein (a leading expert on the Lochner era) has argued, these cases were in fact decisions about the limits imposed on eminent domain under the Lochner-era substantive due process doctrine protecting economic liberties through the Due Process Clause of the Fourteenth Amendment. Whatever one's views on Lochner, I think it's clear that Lochner-era "substantive due process" decisions are not a reliable guide to the meaning of the Takings Clause.
II. The political process is fundamentally flawed.
Many Kelo defenders argue that we don't need strong judicial review of public use issues because the political process will prevent most abuses of eminent domain. This assertion cannot withsstand scrutiny for three crucial reasons:
First, the victims of economic development takings are usually poor and politically weak, while the beneficiaries are often large corporations or well-connected developers. For a variety of reasons more fully summarized in my article cited above, the political process is systematically biased in favor of the latter and against the former.
Second, the historical record is replete with massive and systematic evidence of eminent domain abuse. I cannot present all the evidence here (some of it is summarized in Thomas' dissent and in my article above), but will cite just one startling statistic (see my article for documentation): Since 1950, some FOUR MILLION Americans, most of them poor and/or ethnic minorities, have been uprooted from their homes by "urban development" condemnations. In most cases, the beneficiaries of the takings were wealthy development interests, while the poor and politically disadvantaged victims were given compensation far below the level of their actual losses. These condemnations also did little to actually improve economic development in the cities in question and in many cases probably retarded it.
Third, even if the political process does prevent most abuse (and I don't doubt that it can prevent some), that still wouldn't justify judicial abdication. It is likely that the political power of the press would prevent most violations of its free speech rights even if there were no First Amendment (a prediction actually borne out by the experience of Britain, where there is relatively little censorship despite the lack of strong judicial review of freedom of the press issues). Yet few if any advocates of judicial deference on takings questions would be willing to support similar deference on issues of press freedom, despite the fact that the political process probably protects the rights of the media far better than it protects the rights of the poor and minority homeowners who are the most common victims of eminent domain abuse. Even if a particular constitutional right is rarely violated, the judiciarly should still intervene in those cases where a violation does occur.
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Comments
IMO, you are overlooking the most fundamental and philosohical reason:
From Capitalism Magazine,
Individual rights protect man's freedom — freedom from the coercion of others — to pursue his life and happiness in the only way he can, by following reason. Initiating force against another, by its vary nature, is anti-reason and therefore anti-life. This is what our mainstream intellectuals and politicians obscure, evade and oppose when they advocate the violation of individual rights.
When a collectivist claims that individual rights must be subordinated to the "public good," his concept of "public" is divorced from individuals, and his concept of "good" is divorced from reason, freedom and justice. His claim amounts to: The needs or desires of some necessitate the enslavement and destruction of others.
Mover MikePosted by: Mike Landfair at June 24, 2005 12:50 PM
I am taking a different, long-term view. We are living in a fast-changing society with population growth greater than was projected even a few years ago. Our great leaders largely reject population/family planning or effective immigration controls. Our local officials are trapped by artificial political boundaries.
So, regardless of any erudite legal citations, the fact is, we are cramming more people into less space, period! So something has to give, and will, one way or the other.
Our current laws assure that municipalities will compete against each other by offering tax breaks to developers. Developers employ lobbyists, money changes hands, and we're off to the races.
Nothing will be stable until the root causes of the need for more development are addressed. As for sympathy for those forced to move, with compensation: nothing in the human world is permanent. We call our military troops heroes, yet we force them to move anywhere in the world at a few weeks' notice! So don't ask me to feel sorry for someone who thinks they have an inalienable right to live in Great Aunt Polly's house until the end of time!Posted by: lodger16 at June 24, 2005 08:30 PM
"As my colleague David Bernstein (a leading expert on the Lochner era) has argued, these cases were in fact decisions about the limits imposed on eminent domain under the Lochner-era substantive due process doctrine protecting economic liberties through the Due Process Clause of the Fourteenth Amendment."
Perhaps I am mistaken, but Richard Epstein made this argument in his amicus for Lingle. His arguments were rejected soundly by the Court.
As for the political process being flawed, doesn't Kennedy here give the Courts ample room to step in where extreme violations occur by citing BOTh Williams & Lee Optical AND Clebourne?
Posted by: James Kolbert at June 24, 2005 09:51 PM
The reason the Court defers to the local government on the "public purpose" determinations is that the Court correctly realizes it has neither the time nor the expertise to micromanage local land use decisions. Neither do lower federal courts.
The only exception is for purely private takings disguised as "public use" takings. The courts are better-suited to handle those types of cases because they would not have to pass on a wisdom of a legitimate local land use decision.
Posted by: Gene Vorobyov at June 25, 2005 03:00 AM
The only problem with your political process argument is that both Petitioners and many of the dissenters assumed that clearning blight is a proper purpose. Regardless of whether the people using the property after were private or public, Petitioners conceded that if blight were an issue then the government's action would be proper. What's really at issue is middle class (maybe even lower middle class) property owners. These people have much better access to the political process than those living in blight.
Posted by: Balasubramani at June 25, 2005 04:02 AM