Commentary: Kelo, Public Use and Eminent Domain
The Wall Street Journal’s online “Econoblog” has today published a debate between Harvard Law Professor David Barron and George Mason Economics Department Chair Don Boudreaux, ostensibly about the Court’s pending decision in Kelo v. City of New London. The debate is very revealing, but not, alas, for anything it teaches about the Kelo case.
The Econoblog debate presumably was designed to be about the question the Journal poses concerning Kelo: “Who’s right, the property owners or the city?” The dispute between Ms. Kelo and the City of New London, and the question pending before the Court, is whether New London’s exercise of eminent domain was for a “public use” — in which case the Constitution permits the City to take Ms. Kelo’s property if it pays her just compensation — where the City took that property in the service of an “economic development” plan intended to raise substantial revenue and lead to urban revitalization. (I am not alone in predicting, based upon the briefs and the oral argument, that: the Court will rule for the City; Ms. Kelo will get three or fewer votes (possibly zero, as in the leading precedent, Hawaii Housing Authority v. Midkiff); one or more Justices might write opinions suggesting that the Court needs to reconsider its doctrine concerning what level of compensation is “just”; and, accordingly, the next generation of property-rights scholars will write a slew of articles on the “just compensation” question, replacing the volumes of articles on public use and the “substantially advancing” test that will be rendered obsolete by the Court’s forthcoming decisions in Kelo and Lingle.)
Professor Boudreaux, however, will have none of that. That is to say, he’s not really interested in the question at issue in Kelo. His much more sweeping position is, in effect: Public use, schmublic use: the power of eminent domain is always illegitimate.
To the extent Professor Boudreaux means to be suggesting that the exercise of eminent domain is unconstitutional, or unlawful — and he appears to be arguing that, at the very least, it ought to be impermissible — his can safely be called an outlier position. Indeed, it’s one that I don’t recall any Justice of the Supreme Court — or even Richard Epstein — ever to have suggested.
It has long been an accepted commonplace that eminent domain is an inherent attribute of sovereignty, “the offspring of political necessity.” Indeed, even in 1875, the Court could confidently assert, in Kohl v. United States, that “[n]o one doubts the existence in the State governments of the right of eminent domain–a right distinct from and paramount to the right of ultimate [property] ownership.” As the Court held in Kohl, the state’s power to take private property is so fundamental that even the federal government obviously enjoys it, despite the failure of the Constitution to specifically enumerate it, because such authority “is essential to its independent existence and perpetuity.” 91 U.S. at 371.
Not so, says Professor Boudreaux: “Contrary to much modern mythology, nothing about government renders its violations of property rights less objectionable than those of common thieves and vandals.”
Professor Barron, understandably under the impression that the debate was to be about the “public use” question before the Court in Kelo, concedes at the outset that “[i]t’s hard to know what to make of [Prof. Boudreaux's] grand claims about the importance of the right to property necessarily conflicting with the government’s power to take it — given that the right to property grew up along with the government’s authority to exercise the power of eminent domain.” Professor Barron then patiently tries to show why Professor’s Boudreaux’s wholesale attack on eminent domain is untenable, bringing to mind what the Court wrote in Kohl with respect to the federal goverment: “[The government's independent existence and perpetuity] cannot be preserved if the obstinacy of a private person . . . can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, . . . the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will . . . of a private citizen. This cannot be.”
Professor Boudreaux remains unpersuaded. And although Professor Barron valiantly tries to bring the debate back to Kelo, Professor Boudreaux never really engages on the public use question, because he’s got much bigger fish to fry.
I am no longer surprised when alleged academics of the right wing variety are more familiar with theology than history. Property is a creation of government (and in the Anglo-Ameircan legal context originating in a grant of lands sufficient to support a knight to serve the King) to accomplish governmental purposes such as the survival of the sovereign. Property “rights” are not theologically based but dependant for enforcement upon the coercive power of the state which created them and are thus subordinate to the state. What was added in the American context, and elevated by Amendment V as part of the “deal” to ratify the Constitution, was the concept of just compensation whenever the state decided to take back the property. I suppose that Professor Boudreaux also advocates the theology of the invisible hand. Adam Smith was, in fact, making a rather sly reference to Macbeth, Act 3, scene 2, lines 46ff, wherein Macbeth apostrophises Night saying:
Come, seeling night,
Scarf up the tender eye of pitiful day
And with thy bloody and invisible hand
Cancel and tear to pieces that great bond
Which keeps me pale.
The immediate context is the killing of Banquo but has been understood to more universally embrace the violation of moral/social/political obligations. [See, A.B. Braunmuller of Cambridge U. for more.]
The “invisibile hand of the free market” which is associated with the mischaracterization of Adam Smith as theology can only exist from the enforceability of contracts through the coercive power of the state operated by established statutes. As such “the bloody and invisible hand” is a creation of government and dependant upon its coercive power for its existance.
David Whalin
Comment by Dave Whalin — May 19, 2005 @ 10:58 am
“[The government's independent existence and perpetuity] cannot be preserved if the obstinacy of a private person . . . can prevent the acquisition of the means or instruments by which alone governmental functions can be performed.” True enough, but why should the government’s continuance be paramount? Rather, let it founder, because property is more important.
Comment by Julian Morrison — May 19, 2005 @ 12:01 pm
Locke would have us believe that property existed in the state of nature, and that governments were formed to protect property rights. For what that’s worth.
Comment by phil — May 19, 2005 @ 12:58 pm
It’s a pretty fine metaphysical point whether property precedes or is created by the State. Did Krog, the first caveman, think his club was “his” club before the tribe elected a pack leader? Who knows? It seems like a silly point.
I can safely predict, however, that the property owner in Lingle will lose 9-0. The substantially advances test makes no sense. The Court’s first mistake, which it has repeated on numerous occasions, was in holding that rent control -ordinary, non-wartime, non-emergency rent control – did not constitute a “taking.” It should revisit those cases rather than trod into the bog of having to decide whether every land control regulation “substantially advances” the legislature’s or executive’s ostensible purposes.
Comment by DBL — May 19, 2005 @ 4:35 pm
For what it’s worth, I think the Court ought to limit its holdings from BERMAN and MIDKIFF to situations where the act of condemnation itself serves a public purpose, by eliminating slum conditions (as in BERMAN) or eliminating near-feudal land tenure patterns (as in MIDKIFF). From personal observation, local governments are becoming increasingly brazen in taking property from one “inefficient” land owner and giving it to one that promises them more tax revenues. The Supreme Court should take the lead from the Michigan Supreme Court and the Illinois Supreme Court and stop this nonsense. A “public use” shouldn’t be just anything a governmental agency says it is – otherwise the “despotic power” of eminent domain is just too, well, powerful to pass Takings Clause muster.
Comment by Gordon — May 19, 2005 @ 7:17 pm