Eminently Dumb
The never-ending onslaught of ill-informed editorials on the issue of eminent domain continues this morning, this time in the Los Angeles Times. Steven Malanga, whose column has the unintentionally perfect title "Eminently Dumb Eminent Domain," provides yet another policy-based critique of the use of eminent domain, a critique that displays zero understanding of eminent domain law. Toward the beginning of the column, Malanga makes the following absurdly inaccurate statement:
This statement couldn't be more wrong. Is it too much to ask that op-ed columnists in major papers do some minimal amount of fact-checking before writing a piece? How about their editors? Interns? As I've stated before (here, here, and here), the Kelo decision merely reaffirmed a ruling that had been on the books for over 50 years. Indeed, every single one of the incidents of eminent domain use that Malanga describes in his column occured BEFORE the Kelo decision was handed down. How could he not realize that glaring inconsistency?
The reason property rights defenders went "ballistic" when the Kelo decision was handed down is not because the Court made new law, but rather because the Court refused to make new law. Property rights groups were hoping that the Court would recognize a new right, that it would take the issue of eminent domain out of the province of the political branches and enshrine property protections in the Constitution. In essense, these groups wanted the Court to do what it did in Roe v. Wade, i.e., recognize a new right that has no textual basis in the Constitution. This is more than a little ironic given that the people screaming the loudest about Kelo also tend to be vocal opponents of Roe v. Wade and "judicial activism" in general. Moreover, unlike abortion, the Constitution actually speaks directly to the issue of eminent domain in the Takings Clause. The Takings Clause specifically reserves the right of the government to take private property for public use so long as the owner receives just compensation. The Court's long-standing interpretation of the "public use" language is an entirely fair reading of the text. The Takings Clause simply does not provide fertile enough ground from which to construct new property rights.
Opponents of eminent domain, like Malanga, make some persuasive policy arguments. They should start directing those arguments toward the policymakers, not the Supreme Court. While the Court has repeatedly recognized the government's inherent power of eminent domain, federal, state, and local governments may choose whether or not to excercise that power. Property rights groups should forget about the courts and use their influence to exert political pressure and make sure that the government uses its power wisely.
"It's no wonder defenders of private property rights
went ballistic over the Supreme Court's decision last
month in Kelo vs. City of New London, in which
the court endorsed for the first time the government's
power to seize private land for the sake of economic
development." (emphasis added)
This statement couldn't be more wrong. Is it too much to ask that op-ed columnists in major papers do some minimal amount of fact-checking before writing a piece? How about their editors? Interns? As I've stated before (here, here, and here), the Kelo decision merely reaffirmed a ruling that had been on the books for over 50 years. Indeed, every single one of the incidents of eminent domain use that Malanga describes in his column occured BEFORE the Kelo decision was handed down. How could he not realize that glaring inconsistency?
The reason property rights defenders went "ballistic" when the Kelo decision was handed down is not because the Court made new law, but rather because the Court refused to make new law. Property rights groups were hoping that the Court would recognize a new right, that it would take the issue of eminent domain out of the province of the political branches and enshrine property protections in the Constitution. In essense, these groups wanted the Court to do what it did in Roe v. Wade, i.e., recognize a new right that has no textual basis in the Constitution. This is more than a little ironic given that the people screaming the loudest about Kelo also tend to be vocal opponents of Roe v. Wade and "judicial activism" in general. Moreover, unlike abortion, the Constitution actually speaks directly to the issue of eminent domain in the Takings Clause. The Takings Clause specifically reserves the right of the government to take private property for public use so long as the owner receives just compensation. The Court's long-standing interpretation of the "public use" language is an entirely fair reading of the text. The Takings Clause simply does not provide fertile enough ground from which to construct new property rights.
Opponents of eminent domain, like Malanga, make some persuasive policy arguments. They should start directing those arguments toward the policymakers, not the Supreme Court. While the Court has repeatedly recognized the government's inherent power of eminent domain, federal, state, and local governments may choose whether or not to excercise that power. Property rights groups should forget about the courts and use their influence to exert political pressure and make sure that the government uses its power wisely.
posted by A.L. at 1:13 PM
1 Comments:
A day after the Kelo decision was delivered, Freestar Media LLC submitted a proposal in the town of Weare, New Hampshire where majority opinion writer, Justice Souter, owns a farm house. They requested that the town board condemn the land and give it to them, as private developers, who promise to construct the Lost Liberty Hotel in its place. Their tax revenue would no doubt be higher than the reported $2,500 that Justice Souter paid in property taxes last year. It would create employment and attract tourism. The town has a website, and an economic development committee, which has identified its two main goals: 1) Encourage the formation of new businesses, and 2) Promote tourism. However, contrary to its stated goals and the legally sanctioned purpose of economic development, the town’s board turned down the proposal.
So much for poetic justice. Justice Souter’s influence in his community shielded him from his own ruling. No other rational justification can be found.
Thankfully, the legislative branch is now busy at work attempting to shield private property rights from the Supreme Court ruling. It seems that the two may have switched roles, with the House defending the Constitution, and the Supreme Court writing new laws.
I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.
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