Kelo Decision Vindicated (Conservatives Still Confused)
The New York Times reported on Tuesday that a number of states are considering laws that would curtail the eminent domain powers of state and local governments.
When the decision in Kelo v. New London was handed down last year, conservatives immediately went nuts, characterizing it as an unprecedented curtailment of property rights. It's hard to put into words just how outraged people were by the opinion (and still are). Some even tried to have Justice Souter's home taken away via eminent domain. Conservative reaction to today's news was, therefore, predictable. Conservatives praised the states for acting in response to the Court's detestable, idiotic, unconstitutional decision. Ironically, however, the current push by state legislatures to impose restrictions on their own eminent domain powers is unquestionably a vindication of the Supreme Court's decision, not a repudiation of it. It is exactly what the Court hoped would happen.
As I explained at the time, conservative anger over Kelo was totally misplaced and based almost entirely on a fundamental misunderstanding of what was actually at issue in the case. Contrary to what many continue to believe, the Court in Kelo did not blaze any new trails. It was well-settled law dating back to Berman v. Parker in 1954 that the phrase "public use" in the Takings Clause included economic redevelopment. The issue in Kelo was not whether or not such takings were constitutional--even the dissenters agreed that they were. The question was whether such takings should be limited to poor neighborhoods ("blighted property"), or whether all neighborhoods--including Kelo's middle class neighborhood in New London--were potentially subject to this particular use of eminent domain power. The majority correctly refused to draw an arbitrary line based on the value of the property at issue, a move that would have exempted the middle and upper classes from this use of eminent domain while leaving the poor to fend for themselves. Besides the fact that there is no textual basis in the Constitution for drawing such a line, doing so would have increased, not decreased, the likelihood of eminent domain abuse. If history teaches us anything, it's that our political system does a terrible job of addressing issues that only affect the poor. So instead, the Court held that all property is potentially subject to this power. As a result, legislatures across the country have been mobilized and are working to address this issue politically. If the dissenters had prevailed and the Court had exempted the upper and middle classes from such takings, do you think even one state legislature would currently be working to protect property owners from abusive takings? Of course not. Problems that affect only the poor never get the political attention they deserve.
The majority in Kelo understood this. Indeed, they went out of their way to make it clear that nothing about the decision prevented the political branches from acting: "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." In fact, the "liberal" justices in Kelo did exactly the opposite of what conservatives always complain they do; they refused to read into the Constitution a textually-dubious right, and instead left the issue to be decided by state and local governments, who are better able to address these issues anyway. If the dissenters had prevailed and the Court had drawn an arbitrary line been "good" economic redevelopment takings and "bad" economic redevelopment takings, it would only have invited endless litigation and discouraged any action by the political branches of government. Striking the proper balance between property rights and community rights is a difficult task. The limits on such takings are better set by the political branches, as is happening right now, than written into stone by the Supreme Court. The latter would prevent any meaningful re-examination of where the line is drawn (at least in the near-term). The former allows state and local governments to experiment with where to draw the line based on experience and on state and local political preferences. Laws can be tweeked and fine-tuned. Supreme Court opinions are much more rigid.
The Constitution unambiguously recognizes the power of eminent domain. And all the Justices (except perhaps Thomas) agree that the "public use" clause includes at least some takings for economic redevelopment purposes. O'Connor's dissenting opinion left no doubt about that ("The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause"). So the question then becomes: where should the line be drawn and who should being drawing it? If the Supreme Court were to assume that responsibility, it would be doing so without the benefit of any textual guidance from the Constitution, and the rules it created would be rigid and uniform across the country. But if this line-drawing exercise is left to state and local governments, it will be far more flexible and adaptive, and much more likely to strike the proper balance. This is a far-preferable mechanism for regulating eminent domain than having the courts step in and impose arbitrary rules. The best check on eminent domain abuse is political accountability. As the aftermath of Kelo demonstrates, when local governments go too far in exerting their eminent domain powers, political backlash (and tightening of the rules) is sure to follow.
Someday perhaps a few conservatives will notice how truly conservative the opinion in Kelo was. I'm not holding my breath, though.
In a rare display of unanimity that cuts across
partisan and geographic lines, lawmakers in
virtually every statehouse across the country
are advancing bills and constitutional
amendments to limit use of the government's
power of eminent domain to seize private
property for economic development purposes.
The measures are in direct response to the
United States Supreme Court's 5-to-4 decision
last June in a landmark property rights case
from Connecticut, upholding the authority of
the City of New London to condemn homes in
an aging neighborhood to make way for a
private development of offices, condominiums
and a hotel.
When the decision in Kelo v. New London was handed down last year, conservatives immediately went nuts, characterizing it as an unprecedented curtailment of property rights. It's hard to put into words just how outraged people were by the opinion (and still are). Some even tried to have Justice Souter's home taken away via eminent domain. Conservative reaction to today's news was, therefore, predictable. Conservatives praised the states for acting in response to the Court's detestable, idiotic, unconstitutional decision. Ironically, however, the current push by state legislatures to impose restrictions on their own eminent domain powers is unquestionably a vindication of the Supreme Court's decision, not a repudiation of it. It is exactly what the Court hoped would happen.
As I explained at the time, conservative anger over Kelo was totally misplaced and based almost entirely on a fundamental misunderstanding of what was actually at issue in the case. Contrary to what many continue to believe, the Court in Kelo did not blaze any new trails. It was well-settled law dating back to Berman v. Parker in 1954 that the phrase "public use" in the Takings Clause included economic redevelopment. The issue in Kelo was not whether or not such takings were constitutional--even the dissenters agreed that they were. The question was whether such takings should be limited to poor neighborhoods ("blighted property"), or whether all neighborhoods--including Kelo's middle class neighborhood in New London--were potentially subject to this particular use of eminent domain power. The majority correctly refused to draw an arbitrary line based on the value of the property at issue, a move that would have exempted the middle and upper classes from this use of eminent domain while leaving the poor to fend for themselves. Besides the fact that there is no textual basis in the Constitution for drawing such a line, doing so would have increased, not decreased, the likelihood of eminent domain abuse. If history teaches us anything, it's that our political system does a terrible job of addressing issues that only affect the poor. So instead, the Court held that all property is potentially subject to this power. As a result, legislatures across the country have been mobilized and are working to address this issue politically. If the dissenters had prevailed and the Court had exempted the upper and middle classes from such takings, do you think even one state legislature would currently be working to protect property owners from abusive takings? Of course not. Problems that affect only the poor never get the political attention they deserve.
The majority in Kelo understood this. Indeed, they went out of their way to make it clear that nothing about the decision prevented the political branches from acting: "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." In fact, the "liberal" justices in Kelo did exactly the opposite of what conservatives always complain they do; they refused to read into the Constitution a textually-dubious right, and instead left the issue to be decided by state and local governments, who are better able to address these issues anyway. If the dissenters had prevailed and the Court had drawn an arbitrary line been "good" economic redevelopment takings and "bad" economic redevelopment takings, it would only have invited endless litigation and discouraged any action by the political branches of government. Striking the proper balance between property rights and community rights is a difficult task. The limits on such takings are better set by the political branches, as is happening right now, than written into stone by the Supreme Court. The latter would prevent any meaningful re-examination of where the line is drawn (at least in the near-term). The former allows state and local governments to experiment with where to draw the line based on experience and on state and local political preferences. Laws can be tweeked and fine-tuned. Supreme Court opinions are much more rigid.
The Constitution unambiguously recognizes the power of eminent domain. And all the Justices (except perhaps Thomas) agree that the "public use" clause includes at least some takings for economic redevelopment purposes. O'Connor's dissenting opinion left no doubt about that ("The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause"). So the question then becomes: where should the line be drawn and who should being drawing it? If the Supreme Court were to assume that responsibility, it would be doing so without the benefit of any textual guidance from the Constitution, and the rules it created would be rigid and uniform across the country. But if this line-drawing exercise is left to state and local governments, it will be far more flexible and adaptive, and much more likely to strike the proper balance. This is a far-preferable mechanism for regulating eminent domain than having the courts step in and impose arbitrary rules. The best check on eminent domain abuse is political accountability. As the aftermath of Kelo demonstrates, when local governments go too far in exerting their eminent domain powers, political backlash (and tightening of the rules) is sure to follow.
Someday perhaps a few conservatives will notice how truly conservative the opinion in Kelo was. I'm not holding my breath, though.
posted by A.L. at 10:55 PM
6 Comments:
I was one of those so-called "conservatives" who was outraged by Kelo - but contrary to your generalization, I understood that the High Court wasn't blazing new ground in their decision.
It's because of the slippery slope that past precedent had created that I'd been working on the issue of abusive eminent domain (as was the case in Kelo and just about every instance of condemnation for a private-to-private transaction) since long before America had heard the name Susette Kelo.
But what most property rights activists wanted, and why there were angered by the (close) majority decision in Kelo, was an end to the patchwork of grossly unfair state-based eminent domain laws.
Cases dealing with individual rights come before the high court largely in order to end disparities in the protection of those individual rights between the several states (equal protection)
Classifying Kelo as a "conservative" or "liberal" decision is a mistake. The fight here isn't between conservatism or liberalism (which are inarticulate terms and largely in the eye of the beholder anyway), but between "statists" and "anti-statists" - those who see an enlargement of government power, and those who would like to see that power diminished.
So it was in this case - state eminent domain laws range from the narrow to the wildly expansive (like New York's former "due process" satisfaction of simply putting a notice in the paper to let a property owner know that his or her property was going to be condemned, rather than actually notifying the property owner).
Dealing with these laws on a state-by-state basis was something that was already been doing, but was (and still is) a time-consuming, resource-intensive, and risky proposition. What IJ (and others) hoped to achieve was some final, single, settlement of the issue which would bring about the necessary national solution.
Property rights are civil rights, no different than rights to free expression, rights to privacy, rights to be secure in one's person, etc. In fact, they can be said to be the foundation on which all other rights are based.
So there is no reason for the High Court to not move to pre-empt state law on this (especially if you believe the 14th Amendment to be worth the paper it is printed upon).
This is doubly true when you consider that among the rights actually enumerated in the Bill of Rights, the right to hold and enjoy property free from unreasonable government interference is right there in black-and-white.
Most Americans want to see the powers of government diminished as to their particular personal issues - whether it be for economic or social purposes. And when it comes to the taking of the home of an elderly white woman or a poor person of minority heritage so that a big-box retailer can come in, most Americans agree that this power ought to be curtailed as well.
Interesting blog. I'll look forward to reading more, and to reading your comments.
- Andrew Langer
http://langrrr.blogspot.com
Andrew,
I appreciate your comment. It’s well-written and makes a number of good points, and though I don’t have much time, I wanted to respond to a few of them.
First, I understand that there are a number of intelligent critics of Kelo, like yourself, who understand the law and understand that Kelo was merely a logical extension of past precedents, not a radical departure. I also understand that there’s an argument to be made that the Court went off on the wrong track in Berman, and should have revisited that precedent in Kelo and interpreted the “public use” clause narrowly to prevent the use of eminent domain for economic redevelopment purposes.
It’s important to keep in mind, though, that none of the Justices on the court (except perhaps Thomas) are willing to endorse such an interpretation. In other words, even the dissenters in Kelo concede that sometimes economic redevelopment constitutes a valid “public use.” And there are good reasons for this beyond just a reluctance to revisit long-established precedent. First, this is a perfectly fair reading of the phrase “public use.” There’s no compelling logical or textual reason (I don’t think) for interpreting that phrase to require government ownership and operation of the seized property. The primary purpose of the Takings Clause was clearly to prevent uncompensated takings, not to create a robust right to be free from takings altogether. If the framers had wanted to create such a right, there are any number of ways they could have gone about doing it that would have been much clearer.
Second, there is a compelling practical reason why local governments must retain some right to use eminent domain in this context; without it, major redevelopment projects would be impossible. The problem is that any significant development project requires buying property from multiple sources. But once you start doing this and word of what you are doing gets out (which it almost always does), it creates serious opportunism problems. Because you need all the pieces of land to complete the project, as soon as you start buying them, the remaining pieces become exponentially more valuable. This value does not reflect the actual value of the property under normal conditions, but rather the extortion value the owner can exert by holding up the entire project. If you are missing just one piece, that last holdout can theoretically demand thousands of times more than the person who sold first. Indeed, speculators routinely buy up property that is rumored to be subject to development plans in the hopes of selling for a huge premium. The only thing that keeps this opportunism at all in check is the threat of eminent domain. Speculators and holdouts know that if they demand too much of a premium, the developer might petition the government for relief via eminent domain. Developers prefer not to go this route because it is expensive and time-consuming to lobby the government, but it is the threat of eminent domain looming in the background that encourages land owners to sell at reasonable (or at least not excessively extortionary) prices. If the Supreme Court were to outlaw the use of eminent domain for such purposes, it would pose a serious and often insurmountable obstacle to many redevelopment projects, and that would be bad thing.
So, long story short, once you admit that eminent domain can, at least in some cases, be used for economic development purposes, it’s very hard to draw a constitutional line that isn’t entirely arbitrary and unnecessarily rigid. There will always be the potential for the abuse of eminent domain, but that potential abuse is best kept in check by the court refusing to exempt certain kinds of property from takings. By making it clear that we are all potentially subject to eminent domain, the Court provided the necessary political impetus to create more robust legal protections for all people.
Putting aside the policy and constitutional principles, it should be underlined your title is a cheap shot.
At the time, many liberals were concerned with the decision, from that radical "conservative" radio host Mike Malloy on down. They were concerned somewhat for the same reason as expressed in the first comment: the scope of the opinion.
The "confusion" you cite does not explain the breadth of the concern nor explain it quite correctly. I fear it is a bit of a strawman, which usually does have some strands of truth. Just misleadingly.
Fair enough. Conservatives weren't the only ones who were confused about Kelo. But, in general, they were (and still are) confused the loudest.
Seriously, though, I think the concern over the abuse of eminent domain power is legitimate and worth addressing. I just think it would not have made sense legally or from a policy standpoint for the Court to have ruled the way the dissenters wanted. I think the proper place for such concerns to be addressed is in state and local legislatures and in the ballot box.
I enjoyed your analysis of the Kelo decision. I apologize for re-hashing a topic you addressed a while ago but I only recently found this site so I've been reading "back issues" as it were.
Anyway....my query/comment is concerning your position that Kelo was an example of the Court stating that all property was potentially subject to eminent domain and not just the property of the poor. To what extent (if at all), however, do you think that the Hawaii Housing Authority decision in 1984 already established that idea? After all, in that case, property was certainly being taken from the "landed gentry" if ever there was one in Hawaii. I'm just curious as to your thoughts. Sorry, if this is a topic you've already covered.
Regardless, I agree with you that Kelo was rightly decided....for principles of deference to the legislature if nothing else.
I bumbled onto this discussion as I was searching for talk about property rights activist being listed as possible terrorist threats by the DHS.
Nonetheless, this was an excellent discussion on both sides. I must agree with Mr. Langer that local and state laws are a mishmash of widely varying thresholds for eminent domain. And now, the Supreme Court decision has done nothing to change that.
The crux of issue, as usual, come down to the interpretation of a single word in the Constitution: what does "reasonable" actually mean? And just like the situation with the NSA surveillance program, it means whatever those in power want it to mean and I suspect no single decision by any court is ever going to change this reality.
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