Reason magazine has an interview with Alex Kozinski, perhaps the most libertarian-minded judge on the Federal bench. He is an appeals court judge in the 9th circuit. Kozinski is a fascinating guy. On the subject of growing up in Romania, Kozinski had this to say:
I was a very committed communist when I was there. I believed in communism, and I thought it was the wave of the future. When my parents applied to leave, I thought it was a good thing because I'd be able to educate the workers of the West that they were being enslaved by capitalist exploiters.
When we arrived in Vienna, I discovered bubblegum and chocolate. These things were nonexistent in Romania, and I immediately became a capitalist. I was easily bought off.
Hey, at least it wasn't blue jeans. There are many connections between Judge Kozinski and Eugene Volokh. Both were raised in communist countries and both emigrated to America with their families at about the same age (11 for Volokh, 12 for Kozinski). Both are graduates of the UCLA law school, where Volokh still teaches. And Volokh clerked for Kozinski, as well as Justice Sandra Day O'Connor, after law school.
As a small 'l' libertarian, I thought Kozinski's statements about the libertarian ideal quite interesting. I tend to be with him in thinking that there is no chance of ever achieving any sort of libertarian ideal, as well as in believing that if that did happen, we might not like the results. Nonetheless, we should continue to work to minimize government control in those aspects of our lives where there is no legitimate state interest. We should not allow the perfect to be the enemy of the good, nor should we lose sight of pragmatism.
At the same time, I'm stunned by his answers regarding the Kelo case. Equating the taking of property for public use, such as for a highway, with the taking of property in order to give it to another private interest in order to increase the tax base, is simply lunacy. And I would expect Judge Kozinski, of all people, to recognize the obvious distinction.
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I have long been a fan of Judge Kozinski, and I think he gave a fair statement of his views in the interview. People tend to draw their opinion of a person -- particularly a public intellectual -- based upon a very few of their opinions or statements and then assume the rest. Most people are too complex for this sort of analysis, some of the STACLU crew notwithstanding.
While I think even Kozinski views the result in Kelo unfavorably, he is reluctant to attack the process which produced it. Perhaps more reluctantly I have to agree.
The problem is that government "taking" comprises a broad continuum of actions. Any kind of zoning regulation, for instance, is a taking away of the owner's freedom to use the land as she sees fit.
Most states regulate eminent domain taking by statute (I say "most" because I haven't looked it up; probably they all do) and define it as taking "for a public purpose". See, eg, NCGS 40A, which lists a fairly entensive list of possible condemning bodies and some of the allowable purposes. http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter…
This being the case, it is pretty hard to come up with a definition of "taking" that excludes the Kelos without also infringing on lots of legitimate takings. Many state legislatures are struggling with the question right now, and I wish them luck. It would be better, of course, for municipalities and other condemnors to exercise political restraint, but I think we all know when that is going to happen.
kehrsam wrote:
I think his comments went far beyond merely not wanting to criticize the process that produced the decision. He quite bluntly said that the decision could have come out no other way and dismissed completely the arguments against it. He clearly thinks the case was not only rightly decided, but that it could not have been decided any other way.
But Kelo didn't even get into the issue of such regulatory takings. Indeed, the only place I have ever seen define a taking in that manner is an Oregon statute that was struck down by a judge last year in a stunningly bad decision, then reinstated by a higher court in July. That law required that the state reimburse property owners for any financial cost of regulatory takings. But Kelo dealt only with the most obvious type of taking, seizure of property.
I don't think it's difficult at all to draw this line. The problem with most state statutes on eminent domain is that they allow what Kelo allowed, the taking of property not for public use but for public benefit. That allows local governments to decide that if a given piece of property can generate more tax revenue by being turned into a Walmart or a condo project, then the person who lives there has no choice but to sell the property. And if they refuse to sell it, most state laws (including Michigan) allow the property to be condemned on the ridiculous basis of it being "underutilized". Sandefur has a book coming out on this subject, which I've had the good fortune to read before publishing, and it's stunning what has been going on around the country in regards to eminent domain. You'd be shocked at how bad it is. Anyway, it seems to me that the line is easy to draw - eminent domain should be invoked only for direct public use, not for an indirect public benefit - highways, railroads, parks, etc.
Is a railroad freight line public use or public benefit? Here in Los Angeles they are increasing railroad right-of-way like crazy, to improve freight movement to the ports, i.e., not passenger traffic.
Is it valid to use eminent domain in this case, since the primary beneficiary is the railroad? The general public only benefits by getting more stuff to their Wal-Mart faster.
I cannot possibley see any reason for comparing legitamate eminent domain to the taking of property for increased tax revenue. It is sheer lunacy to say that the individual or company that can bring in the highest return in taxes should be able to take any property they want. Where, pray tell, does it end? What if I were to go to the local zoning office and say that I want to take a piece of land and build a multi-million dollar home there - thus increasing the tax base exponentialy? Should I be able to push the current owner out - just because he has a grandfathered tax rate that is, say, 3% what I would pay for my new home? According to the logic employed by Kozinski that should be completely acceptable - of course then it stands to reason that the next guy to come along should be able to "outbid" the new owner.
keith-
I think it might depend on who actually owns the lines, the railroad or the government. As a general rule, the courts have long allowed railroads and roads to justify eminent domain, but if it's solely for the private use of a railroad company, I would say no.
As Far as I Know, the railroads have *always* owned the right of way. In fact, that is why AMTRAK has to give freight lines the right of way - why in America we can't get our long distance passenger trains to run on time.
I suspect railroads are similar to 19th century reservoirs. I once read a book on some Wisconsin reservoirs, and how they took the land. Corporations were created (probably similar to the TVA) that were granted the power of eminent domain, and the reservoirs were then owned by these corporations.
However, these were special corporations that were regulated in terms of what they could and could not do.
Similarly, I think one can argue that the regulation of the railroads serves a similar function and pulls them into the "public use" as opposed to the "public benefit" side of things.
So, if shopping centers want to incorporate in a way that is heavily regulated, then maybe then they too could be considered "public use".
Ahcuah, you are correct -- and this was my point in my original post -- there are many examples of quasi-public uses for which condemnation power is given. Check out the statute I cited earlier. It lists railroads, bus companies, hospitals, schools, libraries, etc. Note that there is no distinction between those that are public vs private. So while I certainly agree with the idea behind Ed's modest proposal, I honestly don't think it is that simple in the real world. As I said earlier, I certainly give my blessings to legislators currently working on the problem.
My point about there being a continuum of takings is this: Government often works in ways that impair private property in one manner or another, and there are always property owners (private parties) who gain from any taking, and some who lose. When the impairment is either de minimis or as likely to increase the property's value as not, no "just compensation" is required. This is the case with most (but hardly all) zoning restrictions. Similarly, if the imposition is to ban some type of economic activity, but some useful activity remains available, even if not as profitable, no compensation.
For all situations where the property itself is taken from the owner, or all effective use of the property is denied, then compensation is paid, generally at the fair market value of the property as of the date of condemnation.
Courts do not want to become involved in the process at any stage other than determining "just compensation," and this is clearly Kozinski's position. After all, every taking is characterized as "for the public benefit" even though private parties always profit from these decisions. Some property owners are winners, some, inevitably, are losers.
But the decisions leading to winners and losers are essentially political, and Courts do not like making political decisions, despite frequently repeated criticisms of "activist judges." And this is Kozinski's point. Kelo was undoubtably decided correctly based upon the property law of the past 200 years or more. It is an undesireable decision, but correctly decided. If it can be fixed, this will happen in the political sphere as well, not through the courts.
kehrsam wrote:
Well, my point was the opposite: There is a bright-line rule that one can use, and that is the degree of government regulation of the property, even if the property is not government-owned.
If property were taken to make a shopping mall, but that mall was regulated (as one of the conditions for the taking) so that it was more like a city street or park (e.g., free speech rights not normally offered by private malls), then I would call it "public use", not "public benefit".
Admittedly, one could argue about how much regulation counts, so the rule is not entirely "bright," but the rule is 1) in line with past precedent regarding takings in the 19th century, 2) implementable, and 3) avoids takings that many people agree are reprehensible.