Unless you're a libertarian, or a lawyer, you probably didn't pay too much attention to Kelo v. New London, an eminent domain case that worked its way all up to the Supreme Court. New London wanted to hand over its ability to seize private homes to a private entity, the New London Development Corp, in order to "develop" the area for Pfizer, which had a plant in the area. Libertarians objected strenuously, and helped Susette Kelo push her claim to the highest court of the land . . . which then ruled against her.
Now Pfizer is pulling out, following their merger with Wyeth. Incoming mayor Robert M. Pero wanly says: "Basically, our economy lost a thousand jobs, but we still have a building".
Alex Tabarrok coins an aphorism: "Those who would sacrifice property rights to development end up with neither." Too true--it's worth noting that the other landmark eminent domain case, Poletown, was in Detroit. But it's not really that tempting to gloat, because this is a pretty tragic disaster for New London.
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IIRC, that case resulted in several states changing their eminent domain laws to prevent incidents like that happening.
Yeah ... except that it keeps turning out the new laws aren't effective. It's almost as though state legislatures are engaging in Kabuki while making sure their power is untrammeled.
Not enough.
Many still permit transfers from one private entity to another to combat "blight."
And others haven't passed such laws.
Meanwhile -- remember that even though New London's government blew this one -- you still have to believe the federal government is wise and provident and will give you better health care!
It is of interest to notice how the SCOTUS justices voted in this case.
Majority Stevens, joined by Kennedy, Souter, Ginsburg, Breyer
Concurrence Kennedy
Dissent O'Connor, joined by Rehnquist, Scalia, Thomas
Dissent Thomas
Just make sure you don't give O'Connor too much credit for dissenting in Kelo. She wrote the decision in Midkiff, which the majority in Kelo used (quite fairly) to make the decision in Kelo.
O'Connor spent her entire dissent in Kelo trying to explain how the issue was different than it was in Midkiff, but it clearly wasn't. If she admitted she was wrong in her Midkiff decision it would be one thing, but her unwillingness to take ownership of her prior bad decision could very well have made the difference in Kennedy's mind, and the case.
Yeah, well, she wasn't willing to take ownership of her decision in Bush v. Gore, either.
It would be a pretty tragic disaster
if New London had lost a thousand _lives_.
If expediency continues to trump legality,
reason, and fair dealing, sooner, rather
than later, the State will sacrifice lives
to attain its ideological, political, and
financial ends; Payback will be Hell.
I'm glad that, just as with Venezuela's recent troubles, there are no larger lessons to be learned here about the wisdom of granting governments enormous power to use as they see fit to engineer a better future.
Just because random, weird, unpredictable series of events conspired to ruin the well-intended plans of both Chavez and New London is no reason to think that Pelosi's plan to engineer a more perfect health care system through application of progressive genius won't meet with unbridled success.
But that power was granted to the New London government in 1787, when the Constitution of the United States was ratified. Which was why the Supreme Court supported the decision. It was clearly constitutional.
Stupid, yes, and laws have since been changed to prevent that sort of thing in several states.
The power granted by the Constitution was for seizure for "public use." The new interpretation of "public use" by the Supreme Court in this case is something I think those who wrote the Constitution would find abhorrent.
Exactly. Why is that so difficult for people to see?
Maybe. But is the judicial branch the part of government best equipped to make such judgments? It seems to me almost anything that constitutes "public use" inevitably will have major ramifications for profit-seeking firms and individuals. Hydro dam? Check. Airport? Check. Highways? Check. Industrial park? Check.
I think a new pharmaceutical plant might well cross a line a lot of us find repugnant. I'd still rather it be legislators than judges, though, who do the fine-tuning and defining. As a number of commenters have noted, numerous state legislators have passed legislation in response to constituent concerns about this issue. It seems to me that's exactly how our system is supposed to work. I believe the Supreme Court was wise to avoid getting involved in a political thicket in this matter. A bad law, after all, is not necessarily an unconstitutional law.
And fortunately there remains a time-honored strategy for dealing with legislators who don't get it right: throw the bums out!
@Jasper
Then why worry about enforcing any Constitutional protections whatsoever? After all, we can always throw the bums out if we don't like the laws that they pass.I, personally, would like some hard, enforceable limits on the powers of government, ones that aren't subject to the vagaries and timelines of the electoral process.
Jasper,
I don't don't where I have heard that argument before (cough...abortion...cough).
Exactly. And the court decided that "public use" included pretty much any activity that generated taxes. By such logic, going to the corner store and acquiring a pack of gum while paying sales tax counts as "public use".
Personally, I'd rather the courts give attention to the 'reasonableness' of the compensation. The 'valuation games' are what is really driving this phenomena.
This, of course, will require better standards for appraisals. I commonly see appraisals varying by over 100% (i.e., one comes in double the other). The profession is almost useless. . .
Agreed, the fact that a law or policy is bad does not make it unconstitutional. And kudos to SCOTUS when, faced with such a case, it does not overstep its bounds to nullify a constitutional law.
But Kelo v. New London is not "clearly" such a case. The consitition explicitly limits immenent domain to cases of "public use". Under a plain reading of "public use" New London's exercise does not qualify. Under SCOTUS's reading of "public use" the words are essentially meaningingless -- anything the government wants to happen would count as "public use".
I submit that the court's majority purposely choose an odd reading of "public use" to eliminate a check on government, abrogating its duty to enforce the constitution's limits on government.
Who's advocating not enforcing the constitution? I just think in this case -- because it's not clear cut (and if you do think it's clear cut I suppose you'll disagree) lawmakers are in a better position to set up what needs to be enforced than courts.
Me, too. I think taking your property without just compensation would be violating "hard, enforceable limits." So, too, might be taking your property because a politician wants to build a mansion. But "economic development" in my view falls within the legitimate powers of government. It sucks for me or you when it happens to be my or your house that gets taken. But the way to fine tune the process is for legislators to pass laws, not ask judges to engage in micromanagement.
You'll get no argument from me. I'm not a big fan of the Roe standard. It sets up a national-level, non-resolvable clash of absolutes that never ends, as recent events demonstrate. Far better to use federalism, and let Alabama have a different set of rules than New York.
Jasper,
Fair enough. At least your argument is consistent.
"Economic development"?
Why should a bunch of clowns who happened to get elected, who have no necessary economic skill, and who have plentiful conflicts of interest -- be any good at that?
Jasper,
According to the standard espoused in Kelo, a politician could take your property to build a mansion, as long as the "economic benefit" (e.g. the revenue from property taxes that the city/county could collect) was greater with the new mansion than with your property.
I have no problem with condemning and redeveloping truly blighted land, but the neighborhood involved in Kelo was in no way blighted. I think that was pretty clear cut as well. Striking this down would not have been "micromanagement," and any other result could have established a very clear cut rule for what is and isn't acceptable.
New London didn't get that power from the US Constitution; it got it from Connecticut's, which are plural and have a somewhat confusing history (see http://www.cslib.org/cts4c.htm) but were last revised in 1965. Kelo was just about whether the US Constitution forbade that particular exercise of a state-granted power.
Jasper: There is a long-standing judicial principal that says that you should try to intreprent legal clause in such a way that it has some operational meaning. In other words, given a provision that says "G may do X in the service of Y", the courts should not just let G decide what is "in the service of Y", because in that case the clause "in the service of Y" might as well not have been there. The fact that the clause is there means that the court has a duty to police whether G's action is "in the service of Y" or not.
"But it's not really that tempting to gloat, because this is a pretty tragic disaster for New London."
Uhm, what? Yes it is. They're thieves that deserve to wallow in the broken remains of their squandered economic patrimony.
Exactly, people can move to find new jobs elsewhere. Making local governments suffer their bad policies is needed for regulatory competition, something I wish we had a whole lot more of.
I'm gloating. Crooked politicians and sleazy developer are worse off than before they decided to run roughshod over someone's property rights?
The only tragedy was that Kelo lost her home, but that ship had sailed long before the Pfizer news. Frankly, I hope that New London becomes New Detroit.
Voters in Texas amended the Constitution last week to forbid use of eminent domain for "economic development or enhancement of tax revenue purposes, and to limit the legislature's authority to grant the power of eminent domain to an entity," though "blight" is given as a legitamate reason; this is a loophole I wish didn't exist.
But that power was granted to the New London government in 1787, when the Constitution of the United States was ratified.
The power of eminent domain long predates the Constitution. The principal innovation of 1787 was the requirement of just compensation.
Which was why the Supreme Court supported the decision. It was clearly constitutional.
I am not inclined to regard a 5-4 decision as demonstrating "clear" constitutionality.
Yes, ED is ancient doctrine. But I don't think New London acquired the power of condemnation through Common Law, rather through the state constitution. I haven't researched the issue, though, and could be wrong.
Anyone know if the 'just compensation' to the kelo homehowners was enough to let them buy similar homes in the New London city limits?
I attended a conference on eminent domain earlier this year, and I would say the land grabbers were still suffering a loss of morale from the Kelo backlash. I think the assumption is that jury damage awards are expected to be more expensive for government if this continues.
I stopped following the situation after the Supremes voted wrongly to allow the municipality to seize private property and hand it to big business.
How I now feel depends 100% on the answer to this question: did the citizens of New London wreak vengeance on the Town Council by voting EVERY ONE of the ones that supported this out, at the very next election?
If they did, then this is indeed a tragedy.
If they did not, however, then it is payback.
If anyone knows the answer I'd really like to know.
Since when have libertarians been the only ones concerned about abusive use of eminent domain??????
You can have a really strange view of the political spectrum, Megan.
I haven't seen too many campaign ads about eminent domain abuse. Libertarians might trust conservatives a little more on the issue if they would talk about it with half the frequency they talk about gay marriage. (Or bothered to ask supreme court nominees about it, maybe...)
Ah disingenuous Kuehn, attacking the blow owner once again. You really should learn politeness!
Many liberals, especially minority advocates, opposed the Kelo decision, because eminent domain for so-called urban renewal has always been used against blacks. But the liberal intelligentsia -- the New York Times editorial board, the Community Rights Counsel, groups that generally are fans of government planning and aren't fans of private property -- endorsed it.
I'm sorry, but I can't sympathize with the city of New London. Seeing their ill-gotten gains turn into ill-gotten losses gives me a pleasant sense that they have gotten what they deserved; it's like a real-world version of Ayn Rand's hero Francisco d'Anconia's message "Brother, you asked for it!"
So terrible, and yet so predictable.
Anyone who excuses either the behavior of the New London government OR of Pfizer is just blinded by ideology.
I disagree, it's a great time to gloat.
The politicians who voted to create and empower the "New London Development Corp" are scum. If any of them are still in office, I hope this causes them to lose any future elections.
The people who voted for the scum who created th"New London Development Corp" screwed up. Now they get to pay for their screw up. (The people who sat back on the sidelines and watch are, IMHO, just as bad as the ones who voted for them.)
That's known as justice.
Hah, hah. You screwed up, and now you're paying for it. You deserve it!
Stealing people's houses is wrong. Using the government to carry out your theft doesn't make it the slightest bit less wrong.
I felt relieved after reading this. I thought it was gonna be Kelo committed suicide or something.
On the plus side, they now have a more viable (if less poetic) location for the much-anticipated Just Desserts Cafe.
http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
I think we should pass a national Constitutional amendment based on those passed in New Hampshire and other states. Kelo was the worse ruling in a half century and stands to do more long term damage to the country than anything else the court has done in the last century.
Why pass an unnecessary amendment? Most of the States (over 40, IIRC) have already passed such laws themselves.
Because it calcifies the rule while the anti-eminent-domain side has an advantage to press?
If by "such laws", you mean toothless symbolic enactments that have massive loopholes that don't actually prevent eminent domain abuse, sure, over 40 states have enacted such laws.
If you mean real, actual limits that would prevent a Kelo-like development, well, no, only a small minority of states have enacted such rules.
So what you're saying is, you strongly favor centralizing government as much as possible?
Guys, gals, it is all one thing;
Government is always tempted
to abuse power, and absent
an immediate negative feedback
for so doing, will just get worse
over time, until it unwittingly
crosses a tripwire/tipping point.
When shearing sheep, or voters,
it is wise to stop when one
reaches the skin. No joke there;
The original saying dates back
to Roman times, and is still
good advice for politicians
who wish to avoid being
"Hung with cotton wool"
to pervert a Persian saying.
"But it's not really that tempting to gloat, because this is a pretty tragic disaster for New London."
This is completely wrong. If we don't "gloat" they'll do it again. This is commonly called publicity.
Your desire will result in a repeat of the stimilus, an abject failure we are likely to repeat because we haven't rubbed the liberals noses in its failure quite enough.
Not the most brilliant adoption of an aphorism. We can run it any way we want. "Those who would sacrifice development for property rights end up with neither."
Property is not a universal, it is a construct created by the government for the public benefit. If property works against the public benefit, it loses its justification.
Effective urban planning can have a huge and lasting impact on peoples' quality of life. The government is right to not consider property inalienable when weighed against the potential benefits of development.
If you honestly believe otherwise, it is probably time for you to give your land back to its rightful indigenous owners.
Property is not a universal, it is a construct created by the government for the public benefit.
This is a horrifying proposition. It suggests in the absence of gov't armed robbery is not a crime.
If you honestly believe otherwise, it is probably time for you to give your land back to its rightful indigenous owners.
They traded it for firewater, horses, guns, and steel.
Actually, the very first people to arrive in any given area of North America were doubtless killed off thousands of years ago by other people long before Europeans got here, so there's really no "rightful owners" to give it to. The Europeans at least traded for some of the land with the 10% or so that survived the European diseases.
Not the most brilliant adoption of an aphorism. We can run it any way we want. "Those who would sacrifice development for property rights end up with neither."
No, not really. Property rights are property rights; development is no right, it is an aspect of economic activity which, ironically, hingest on having a reasonably strong system of property rights. In the long run, people won't make investments that are at risk of being stripped out from under them at the fiat of someone else's allegedly better use.
Hence, the adoption of the aphorism is quite adept. The property rght, just like liberty in the original, is the ideal condition. Economic development, just like security in the original, is a provisional condition. Sacrificing the ideal for a claimed increase in the provisional ultimately works to destroy both, because it transfers excess power to a third party whose self interest is not fully vested in either one.
Saying that "property is a right" more emphatically doesn't make it any more so. If you think it is somehow a universal that transcends the legal framework, you'll need to provide a stronger standard. As it is, rights in the legal sense are limited.
Inadequate economic development can lead to loss of life,liberty, and pursuit of happiness(declaration of independence), as well as general welfare(preamble of constitution). If someone's property is an obstacle to the government's mandate, there is a clause in the 5th amendment of the constitution that permits taking that property as long as due process is followed and compensation is provided.
In absence of government armed robbery would not be crime. It might be wrong, but not a crime. Analogously, in absence of government you have possession but not property.
Disregarding your somewhat cartoonish defense of the legitimacy of land claims, the discussion of indigenous peoples is an excellent case for demonstrating this my insofar as these claims are exceptionally muddy.
Did the people who traded for "firewater, horses, guns, and steel" have the authority to sell the land? Or were they accepting payment for another owner's land? If your father catches my flu and dies, do I get claim to his land? If I nonviolently occupy a patch of land your family has lived on for centuries, is it okay for you to take it back by armed robbery? Can I shoot you for coming on "my" land?
We can only resolve these questions by making reference to the law and it is only because of a series of decisions by courts empowered by the government that legal claims are less ambiguous today than they were in the early history of European colonization of the Americas. Without even a minimal government we only have possession, power, and force. Not law. Not justice.
That's a fine delve into the Doctrine of Original Nihilism, and I might not disagree with you if this discussion hinged around abstract philosophy. However we are presently talking about a system already in existence, which includes a fairly strong form of a property right. Meanwhile, where I find your views to be dangerously vague is right here:
"If property works against the public benefit, it loses its justification."
That's a positive test ("public benefit"), and therefore subject to all of the willful vagarity and glorious abuse that accompanies positive tests. What qualifies as a "beneficial" result? Your proposed test also suggests that property may be defnitionally created or destroyed by the fiat of that test, neutralizing the concepts of both property and owner entirely, which has never worked too well in countries that applied it that way. It also does not describe the traditional application of property rights in the US. A negative test, with consequences applied to the owner, would more accurately capture the traditional US application:
"If property works or is used toward the public harm, the owner loses his justification to maintain control over it."
That captures the intent, at least, of blighting and asset forfeiture laws. It acknowledges that there should be clear circumstances and defined practices for appropriating property against the owner's will. And it makes it possible for sustainable economic activity to proceed, as economic actors can have confidence that an investment will generally be protected by the state for the sake of property itself, instead of being taken and reconsolidated in a neo-feudal fashion by the rich and powerful (which is basically what New London did to Kelo).
aMouseforallSeasons,
The facts of law are not on your side in this case. New London v. Kelo is at most a clarification and continuation of a precedent.
You are right that measuring public benefit or general welfare is tricky, and the end result may not always distribute completely evenly. As a legal standard this is insufficient and the courts have not used it.
You are wrong that a negative standard has been adopted in recent legal interpretations. Since at least Berman v. Parker(1954), the courts have held that government could take property for a "public purpose" if just compensation is provided. In Hawaii Housing Authority v. Midkiff(1984) they held that the government purpose be "conceivable" not certain. In U.S. v. Virginia(1996) the court held that the government purpose "must be genuine, not hypothesized or invented post hoc in response to litigation." In Kelo v New London they held that the purpose be plausible.
The standard is a question of fact. Is there evidence that the government purpose was intended when the taking occurred?
The only real new issue in this case was whether the government could delegate their taking authority to a private entity. Of course, delegation power has sufficient support in case law, as well. This sort of privatization through contractor delegation is actually a pet issue for many conservatives.
If you want to argue that Kelo v New London was the wrong decision, you should be clear that you are arguing against precedent and in favor of an activist court. You'll need to justify your position in another way.