Dispatches from the Creation Wars

The notion of limited government took another enormous body blow today with the Supreme Court’s astonishingly wrongheaded decision in the Kelo case (see the text of the decision here). It was 5-4, with the 4 most conservative justices – Rehnquist, Scalia, O’Connor and Thomas – dissenting. There is grand irony here. Despite the common perception that liberals are for the “little guy” and conservatives are for “big business”, the liberal judges on the court just upheld the government’s power to take away someone’s property and give it to private development companies solely because the private developers will use it in ways that will boost the tax base, while the conservatives on the court offered a blistering and absolutely accurate dissent. What this means, essentially, is that you don’t really own your home and property. You only own it until someone else can convince the government that they can put it to better use, at which point they can take it from you and give it to someone else. It’s difficult to imagine a more flagrant violation of our founding principles than that.

I hope Timothy Sandefur, who spends his professional life battling such eminent domain policies, will weigh in on this. Since he has stopped blogging at Freespace, I’ll be happy to offer him space here to fisk this decision.

Is it overstating it to say that the entire experiment in limited government that we began 216 years ago with the passage of the Constitution may well have come to an end in the last few weeks with the double whammy of the Raich and Kelo decisions? If “interstate commerce” can be abstracted to give the government authority over activities that are neither interstate nor commerce, and if “public use” can be abstracted to cover private use, I dare say we have passed through Alice’s mirror into a Wonderland where words can mean whatever the Queen wants them to mean at any given time.

Other reactions to the decision are coming in. Radley Balko says:

The five most liberal justices on the court made up the majority, once again proving that today’s left is utterly devoid of any principle other than ensuring massive, all-encompassing, ever-growing government power. In this case, they’ll gladly side with huge corporations who collude with state and local government to screw powerless people out of the homes and property they’ve owned for generations. The corporations get cheap land below market value, and the local city council members get more tax money to throw around to win votes.

Julian Sanchez writes:

As Raich taught us that growing pot in your backyard for personal consumption is “interstate commerce,” Kelo informs us that taking people’s homes to hand over to private developers building an office complex is a “public use.”

You do wonder: Now that the “liberal” justices on the court have sided with the drug warriors against cancer patients, and with a plan to rob people of their homes for the benefit of wealthy developers, will some court-watchers on the left begin to question the wisdom of having let economic freedom become the red-headed stepchild of modern jurisprudence?

And here is Justice O’Connor’s dissent, summing up perfectly what has happened here:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded-i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public-in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property-and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

More as they come in.

Comments

#1 raj
June 23, 2005

It’s apparent from this case and Raich that Americans shouldn’t go prattling on to the rest of the world about private property. This case is horrible. And I’ve just read the 1st paragraph.
#2 raj
June 23, 2005

BTW, as I’ve noted elsewhere, I’m livid about the decision in this case. I really am

What this tells me is that you own your home only because the government lets you to. It’s bad enough that the government rents the property to you because of property tax. But that government can take it away from you because they might make more money from it by putting it to another use? That’s preposterous.
#3 PaulNoonan
June 23, 2005

Apparently the Raich decision outlawed the wrong kind of Kilo.

I know that this was the expected outcome, but it’s just unbelieveable to me that 5 grown men and women could arrive at such a decision.
#4 Michelangelo
June 23, 2005

There is grand irony here. Despite the common perception that liberals are for the “little guy” and conservatives are for “big business”, the liberal judges on the court just upheld the government’s power to take away someone’s property and give it to private development companies solely because the private developers will use it in ways that will boost the tax base…

The irony is even greater, Ed–as Justice Thomas points out in his dissent, the communities most likely to be impacted in this way are the ones that would most “benefit” from the process, i. e. poor communities. Not only would their tax bases be boosted the most, but they are also very weak politically and unable to muster the bribes…I mean, resources of the large developers.
#5 carpundit
June 23, 2005

Apparently there’s no end to the power of government these days. I hope Stevens retires soon. Or Ginsburg. Kelo is an outrage, like Raich before it.
#6 Mark Paris
June 23, 2005

“The World Turned Upside Down.” Has the experiment failed?
#7 flatlander100
June 23, 2005

It is an unfortunate decision, but not without it’s ironies. Such as the majority opinion eschewing “judicial activism” [politely so-called] and defering to the judgement of the duly elected government of the city involved, which decision seems [from a fast scan of legal, conservative and libertarian blogs] to have outraged a good portion of the punditry on the political right.

Once again, it is an unfortunate decsion, and in my view and incorrect one on the merits. But before we go overboard with questions about is the experiment dead and so on, permit me to note that there is a remedy available to the plaintiffs in this case: remove the current city council at the polling booths using their development plan as an, if not the, issue. Similarly, as the decision noted, state legislatures are free to enact laws limiting and restricting in a variety of ways municipalities’ powers to condemn property for this kind of private development.

Yes, I know, such remedies provide no protection for minorities in such circumstances, but that’s hardly news. Over and over again, it’s minority communities or neighborhoods in cities that have been forcibly “renewed” as blighted areas only to see viable, living [if poor] communities replaced with crime-ridden blighted high-rise ghettos where “community” is a lost and forgotten concept. The slightly unusual element of this case is that the city went after a long-established middle-class neighborhood. I suspect state legislation limiting the exercise of eminent domain powers will begin popping up shortly. Already has in the Gret Stet of Utah.

Bad decision, but not the end of the experiment…. Or even close.
#8 Roger Plothow
June 23, 2005

Yes, the decision is regrettable, but it’s not a disaster — after all, aren’t we in favor of states’ rights? I’ve just finished an editorial for an edition next week encouraging Idaho’s legislature to step into the breach like Utah’s did this year.
#9 Ed Brayton
June 23, 2005

Roger wrote:

Yes, the decision is regrettable, but it’s not a disaster — after all, aren’t we in favor of states’ rights?

Absolutely not. States don’t have rights, individuals have rights. States have authority, but that authority is supposed to be limited by the Constitution. That appears no longer to be the case because the language of the Constitution can simply be stretched to accomodate whatever the government decides to do.
#10 Mark Paris
June 23, 2005

“States don’t have rights, individuals have rights.” Absolutely correct, and a point often missed.

As to the experiment, the Constitution was intended to provide some boundaries for democracy so that the rights of small groups were not overrun by the majority. The people who are likely to be affected by this ruling are the very ones least able to protect their own rights at the polls. This means, as already pointed out, that no one owns property because anyone’s property can be taken and given to someone else. All that is required is that the person whose property is taken be politically powerless.
#11 Reed A. Cartwright
June 23, 2005

I’ve never liked constitutional decisions that assume that governments will never abuse their powers. We have constitutional protections and judicial review because governments do abuse their powers. SCOTUS has erased “for public use” from the fifth amendment by saying that every exercise of eminent domain is “for public use”.

I suggest that communities exploit this ruling to the fullest. Want a pro sports team? Take it and sell it to an individual who will move it to you community. Want a new factory? Take the company and sell it to an company that will relocate to your communuty. Those seem to be perfectly in step with the logic of Kelo since they will increase tax revenues.
#12 G-Do
June 23, 2005

Let me see if I have this straight:

This is like eminent domain, except the property in question isn’t taken for public use, it’s taken for private use which benefits the public. Does the former property-owner get just compensation under this decision? How does this relate to eminent domain?
#13 Reed A. Cartwright
June 23, 2005

The decision was about the scope of eminent domain powers.

The courts have ruled that local governments can use their eminent domain powers to force a private party to “sell” their property to another private party. All the government has to do is assert that the transfer will benefit the public, i.e. increase tax profits.
#14 Grumpy
June 23, 2005

If Democratic politicians are smart (and, given the law of averages, that has to happen eventually), they’ll scream from the rooftops about this. If only to mitigate the attribution of this ruling to the “most liberal justices.”

Of course, Republicans will soon learn to love the ruling, ignoring the private property of the little guy, and then accuse Democrats of wishing for judicial activism.

“Grand irony” indeed.
#15 Kathy Britain
June 23, 2005

This is just sooooo wrong. I keep thinking about the what ifs……What if it happened to me. I’m one of those little people in Southern CA, with little or no extra money set aside. If people were paid market value for their property, or a little more, they would barely have enough left over for a down payment on another home. Probably not get the same interest rate, the property tax would be double what they were paying for the property they had bought ten years ago. People are already living paycheck to paycheck. I don’t see the city or “Private use” developers compensating me for the years of additional expenses.

What about the 150 unit apartment complex in a run down neighborhood. They probably could not find another “affordable” apartment. Some may have to live on hand outs from the city / state for years. In other words, our taxes.

It seems like nobody making this decision has thought about the trickle down effect. Maybe they did and just ignored how it will affect those with little or no money.

Will the cities make a garuntee that the monies collected be used for specific purposes and improvements and not just of administration costs?
#16 G-Do
June 24, 2005

Okay, here’s question number two: do eminent domain powers apply to any property, or only land-based properties? For example, could it apply to a modified computer? Software? Organs? Does the new modification shift this definition of “property” at all?
#17 skippystalin
June 24, 2005

Can anyone actually point out where “municipal government” is noted in the constitution? It seems to me that the “City of New London” doesn’t even have standing in this case.
#18 raj
June 24, 2005

Too many issues to deal with.

States don’t have rights. State governments have powers. Ed is correct, persons have rights. The powers of state governments are limited not only by their individual state constitutions, but also by the federal constitution.
#19 raj
June 24, 2005

flatlander100 at June 23, 2005 01:50 PM

Yes, I know, such remedies provide no protection for minorities in such circumstances, but that’s hardly news. Over and over again, it’s minority communities or neighborhoods in cities that have been forcibly “renewed” as blighted areas only to see viable, living [if poor] communities replaced with crime-ridden blighted high-rise ghettos where “community” is a lost and forgotten concept

This is probably the saddest part of it. They were stable communities. I grew up in Cincinnati in the 1950s and 1960s, and, when “urban renewal” came around, the proverbial shit hit the fan. (Please pardon my “french.”) Urban renewal ruined those communities.
#20 Donny
June 24, 2005

Any exercise of eminent domain power has consequences for the affected property owner. As a practical matter, are the consequences any worse because the land goes to a private developer rather than to a government entity? In theory, the decision stinks. Will it be that bad in practice? How slippery a slope are we on, and what lies at the bottom?
#21 G-Do
June 24, 2005

What lies at the bottom?

DICK: “Sorry, Timmy. Dick Nixon needs your liver.”

TIMMY: “No!”

DICK: “America is better off with your liver in my torso, Timmy. Do you hate America?”

TIMMY: “NOOOOOO!”

DICK: “Get im, boys.”

Yeah, Nixon’s dead, but I was watching Futurama, and it just worked so well.
#22 Patterico
June 24, 2005

Ed,

I haven’t had a chance to read the decision, and I don’t criticize decisions I haven’t read. Since I’m guessing you have, could you answer this for me: a quick skimming of the decision indicates that it’s not so outrageous on its own; it’s just a flawed application of a line of precedent that is itself deeply flawed. Does a closer reading bear this out? And if so, what implications does that have for those who argue that decades-old constitutional jurisprudence should not be thrown out (even if wrong) out of respect for stare decisis?
#23 GeneralZod
June 24, 2005

With this decision and in light of RIULPA, does this mean that the government can take away your property, so long as you are NOT a church? Tear down that church and put up a Best Buy! What generates less tax revenues than a (non-taxed) church? (An empty lot, maybe? A tire fire?)
#24 Ed Brayton
June 24, 2005

Patterico wrote:

a quick skimming of the decision indicates that it’s not so outrageous on its own; it’s just a flawed application of a line of precedent that is itself deeply flawed. Does a closer reading bear this out? And if so, what implications does that have for those who argue that decades-old constitutional jurisprudence should not be thrown out (even if wrong) out of respect for stare decisis?

I think you’ve got it right. This decision didn’t come out of the blue and was not unexpected. It’s a logical extension of a flawed premise, but that is true of most bad judicial rulings. Rarely are they entirely untethered from precedent and tradition. This case is most outrageous when viewed as the final nail in the coffin, so to speak.

As far as stare decisis goes, everyone knows I’m not a big fan of that idea in situations where the precedents were wrongly decided. This case only confirms my thoughts in that regard, of course. In a series of small steps, we have ended up with something entirely contrary to the principles that were enshrined in the Constitution (and in this case, I truly mean the principles, rather than their compromises on them). There is no right more obviously central to this nation’s founding ideals than the right to own property.
#25 Ed Brayton
June 24, 2005

GeneralZod wrote:

With this decision and in light of RIULPA, does this mean that the government can take away your property, so long as you are NOT a church? Tear down that church and put up a Best Buy! What generates less tax revenues than a (non-taxed) church? (An empty lot, maybe? A tire fire?)

This is an interesting question and one that has been getting a lot of comment over the last 24 hours on the ReligionLaw listserv fun by Eugene Volokh. Many of the top law profs in the nation have been chiming in on that question and pointing to other precedents which would have protected church property from seizure even before the recent rulings. But I’m not up on those rulings enough to comment on it myself.
#26 KetihB
June 24, 2005

I notice Tim hasn’t chimed in, but I heard him on KCRW’s “Which Way LA” last night – I imagine downloads are available at kcrw.com.

Good job Tim, you cynic, you!

His opposite member was a City Manager who basically said that “We can take any property we want, but we have to be careful, so this decision doesn’t get reviewed again.” His main reason to *not* take property in a specific case was because the owner was a Japanese man who had been interred in WW2!

While I hate to agree with Ronald Reagan, I think I agree that the most terrifying words are “I am from the government, and I am here to help!”
#27 Ed Brayton
June 24, 2005

Keith wrote:

I notice Tim hasn’t chimed in, but I heard him on KCRW’s “Which Way LA” last night – I imagine downloads are available at kcrw.com.

He actually has posted on it at another blog: http://federalism.typepad.com/crime_federalism/2005/06/the_key_ini_kel.html.
#28 Donny
June 24, 2005

I can’t help but notice that many small-government conservatives and self-styled libertarians want a non-activist judiciary except when they don’t. I think there ought to be a moratorium on using procedural arguments as proxies for matters of substance. People really don’t give a shit about “judicial restraint” or “states rights” except insofar as they are seen as more or less likely to yield desired substantive outcomes. This crap has been going on since the Civil War and it’s getting very stale.
#29 Reed A. Cartwright
June 24, 2005

This is an interesting question and one that has been getting a lot of comment over the last 24 hours on the ReligionLaw listserv fun by Eugene Volokh. Many of the top law profs in the nation have been chiming in on that question and pointing to other precedents which would have protected church property from seizure even before the recent rulings. But I’m not up on those rulings enough to comment on it myself.

Does this email list have public archives? I’m curious as to the discussion.
#30 Ed Brayton
June 24, 2005

Reed-

Yes, it does. See here.
#31 386sx
June 24, 2005

Does this email list have public archives? I’m curious as to the discussion.

http://lists.ucla.edu/pipermail/religionlaw/
#32 Ken Hall
June 25, 2005

George Mason said we’d end up either with a monarchy or a corrupt aristocracy. I think we know which now. Anyone up for a Constitutional Convention?