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June 24, 2005

Kelo: The Road To Serfdom

Last week the half-vast editorial staff observed with some snark that certain members of the Court will do almost anything to avoid coming into contact with the actual language of the Constitution:

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Yesterday's decision, therefore, should come as no surprise even if, as Mary Katherine Ham remarks, it causes a sinking feeling in the stomach:

This sentence makes you wonder where you live:
As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Welcome to America!

Actually, my first thought was, "How very...French." This is about as Socialist as it gets. Indefensible, really. The same Court which invented a right to privacy not present in the text of the Constitution has now decided it has the power to blatently ignore clear and unambiguous language that is plainly present in the Constitution.

But as the Listless Lawyer points out, there may be a silver lining:

It’s quickly becoming clear that Kelo is the decision that everyone can hate. Liberals and conservatives alike are finally united in opposition to the Supreme Court.

It’s a good thing.

Not because this was a good decision. No, conservatives uniformly seem to hate this decision, as they should, and most liberals are hating it too. But this decision will make the upcoming confirmation battles just a little bit easier for the formalists, and neo-formalists, who want to put an end to the “living Constitution”.

I wish I could be that optimistic. Certainly it presents a powerful argument that conservative justices are more inclined to limit their rulings to the text of the Constitution vs. their personal beliefs. But I think Listless errs in assuming this is what the Left wants.

The crucial distinction, in my view, between the Right and Left is that in general conservatives will generally argue (at least in principle) that one must follow the law and accept the outcome that follows (even if imperfect), where liberals are more likely to argue that obtaining an equitable outcome outweighs strict adherance to the letter of the law. Hence their reliance on judicial activism to accomplish via the courts what they cannot via the plebescite.

Kelo has been framed by some as a victory for federalism:

Isn't there a compelling federalism case for what the majority did? The states and municipalities are laboratories, right? Well, if New London and Connecticut want to run a really stupid experiment, massively unsettle property rights, and "foul their own nest" (as a wiser, and funnier, man than I said of the case), why not let them? Yeah, people like Mrs. Kelo get hurt, but people get hurt under all the stupid, hare-brained schemes we let states try under the auspices of federalism.

I think there are two common sense arguments to be made here. First, the Constitution clearly speaks to the issue, taking it out of the hands of the states and reserving the right to own property, subject to just compensation, to private citizens. Once the Constitution guarantees a right, the states may not lessen or infringe upon that right - they can enhance it, but they cannot diminish it.

Secondly, I don't see this as a state vs. federal argument at all but an individual vs. government issue. The right to own property, like the right to be secure in your home, the right to be protected against unreasonable search and seizure, and the right to liberty, are fundamental rights. It doesn't get much more basic than that. You only have so many elemental rights: life, liberty, property.

If the government, whether state or federal - it matters not which one we are talking about here - can deprive you of any of those unreasonably, then we have fundamentally altered the way the Founding Fathers intended this country to work.

It's that simple. I have to note that Justice Thomas is really coming into his own and I am glad to see it. His vocal critics, who have implied both that he is stupid and that he is somehow a traitor to his race will have trouble defending that claim given these words:

The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities,", surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with dis- proportionate influence and power in the political pro- cess, including large corporations and development firms" to victimize the weak.

Those incentives have made the legacy of this Court's "public purpose" test an unhappy one. In the 1950's, no doubt emboldened in part by the expansive understanding of "public use" this Court adopted in Berman, cities "rushed to draw plans" for downtown development. "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them." Public works projects in the 1950's and 1960's destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. In 1981, urban planners in Detroit, Michigan, uprooted the largely "lower-income and elderly" Poletown neighborhood for the benefit of the General Motors Corporation. Urban renewal projects have long been associated with the displacement of blacks; "[i]n cities across the country, urban renewal came to be known as 'Negro removal.' " Over 97 percent of the individuals forcibly removed from their homes by the "slum-clearance" project upheld by this Court in Berman were black. Regrettably, the predictable consequence of the Court's decision will be to exacerbate these effects.

When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.

We cannot agree more. This decision is shameful. Justices Stevens, Kennedy, Ginsburg, Souter, and Breyer, your homework assignment for tonight.

Update: Kelo snark...

OpinionJournal weighs in:

So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it's now ruled that there are effectively no limits on the predations of local governments against private property.

Exactly. As I said earlier, "How French..."

Update II: Oh Dear Lord...


We the People of the United States, do hereby demand that our duly elected representatives in both houses of Congress, initiate impeachment proceedings against the following Supreme Court Justices:

John Paul Stevens
Anthony Kennedy
David H. Souter
Ruth Bader Ginsburg
Stephen G. Breyer

We, the undersigned, consider the Supreme Court ruling in Kelo v. New London, 04-108, rendered June 23, 2005, not only unacceptable, but to be in criminal violation of the Justice's oaths to uphold, protect and defend the Constitution of the United States.

Be advised that We the People regard elected officials to be our public servants. Failure to take action against the Justices specified shall be considered support for the decision rendered in the aforementioned case, and will result in our resolve to ensure your defeat in the next election.

Being from myriad political and ideological spectra, we are united in our belief that our right to own property is inalienable.


The Undersigned

Update III: Timothy Sandefur:

There’s one sentence that really does all the damage in Kelo, but so far I haven’t seen people focus on it.

...I submit we should be shocked that, two hundred years after the Declaration of Independence, with the Revolution, the Civil War, World War II, the Civil Rights Struggle, all in our experience, our intellectual leaders don’t know what a legitimate state interest is.

The fact is, they are terrified of that consideration because it would involve taking seriously the fact that government has no “legitimate interest” in taking the property of one person and giving it to another person. To take the property of A and give it to B is simply illegitimate—a violation of the very purposes of government. But, of course, it is the government’s primary occupation today. For the past seventy years, the Supreme Court has simply turned its back on government taking things from people who earn them, and giving them to people who do not, and the result has been the erection of a massive, unconstitutional, illegitimate, regulatory welfare state. For the Supreme Court now to return to taking this issue seriously would involve not only admitting that they were wrong (something none of us likes to do) but seriously challenging the legitimacy of the redistributionary scheme that passes for politics today.

So here’s the key to Kelo:

Promoting economic development is a traditional and long accepted function of government.

Justice Stevens provides no explanation of why “promoting economic development” is a legitimate state interest. He simply asserts that it is “traditional and long accepted.”

Long accepted—by whom? It certainly was not accepted by those who drafted and ratified the Constitution, and it is the Constitution—not whatever violations of it that people have “long accepted”—that the Court ought to regard in its deliberations. As Frederick Douglass said, “nothing is settled that is not right.”

Best thing I've read today.

Posted by Cassandra at June 24, 2005 05:38 AM

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Tracked on June 25, 2005 07:22 AM


Cass, I am going to email a link to this entry
to a friend of mine. She might need it.

Posted by: Cricket at June 24, 2005 08:05 AM

I think Steve Forbes and Trump should propose a new slew of job and tax generating developments, sure to add to the overall value of the community. These developments will provide safe spaces for children, "high quality" employment.

The proposed locations are the Kennedy Compounds, and the neighborhoods of Pelosi, Ginsburg, and KKKKKKK Byrd.

Posted by: Marsh at June 24, 2005 08:50 AM

David Souter surprised me. He was a Reagan appointee and the rest who waved their magic wands to destroy property rights...weren't they Clinton appointees? And the dissenters from Papa Bush's time? Just asking...

Posted by: Cricket at June 24, 2005 09:48 AM

Good quote from Justice Thomas. I like him more and more every day. Stevens (as you know) is my bogey man. He is the most dangerous voice on the court and his opinions are, at best, half-baked.

Posted by: spd rdr at June 24, 2005 10:44 AM

Well spd, you know I've always thought there was more to Thomas than met the eye. Moreover, I think he is cautious and not particularly combative by nature. I'm glad to see him asserting himself a bit.

Posted by: Cassandra at June 24, 2005 12:12 PM


The box score:

A. Kelo majority, with appointing President in parentheses--Breyer, Ginsberg (Slick), Souter (Bush41), Kennedy (Reagan), and Stevens (Nixon).

B. Kelo minority, ditto--Rehnquist (Nixon), O'Connor, Scalia (Reagan), and Thomas (Bush41).

As has been said, Kennedy is the most dangerous man in America. A supposed conservative who was nominated by Reagan after the trashing of Bork, Kennedy has gone native. Kelo, US Supreme's latest abomination and a truly dangerous decision, would have come out differently if Kennedy had grown a spine.

Posted by: The Great Santini at June 24, 2005 01:35 PM

Perhaps because I've been in France for a week, I am in a very contrary mood and I am therefore happy to wade into the swamp and take all you guys on. I am able to do this because I have not yet read any of the opinions in the case, so I have a lot of room to plead ignorance if you intelligently refute my arguments.

The argument, it seems to me, is over the words "public use." It seems to me that most of you are assuming that "public use" means the same thing as public ownership. Why? There is a lot of property that is privately owned but publicly used, at least according to the ordinary meaning of the term. For example, there is a critical road through Princeton that is owned by the University but used by the public 364 days a year. This road is an essential thoroughfare, and very few people even know that the University owns it. The University closes it for a few hours one Sunday a year -- usually in the middle of the summer -- to innoculate itself against an "adverse possession" claim, but it is "publicly used" even if it is privately owned.

There are other examples of public use of private property. Big shopping centers, for example, are private property but effectively public spaces, and there are limits on the rights of owners of shopping centers because of that condition.

The point is, it is not obvious as a textual matter that "public use" and "public ownership" are the same thing, however much libertarians would wish it to be true.

The more interesting question, I think, is what libertarian opponents of the Kelo decision should want. That is, even if Kelo had come out as the dissenters propose, we might then choose to amend the Constitution to overturn that result. Would we want to?

On the one hand, property rights should be sacrosanct....

On the other hand, there is a real question about how we do major public "space" projects in our increasingly crowded world. In the absence of the power of eminent domain for such projects, there are two alternatives.

First, you might just require that developers pay what it takes to buy the necessary land from willing sellers. The problem, of course, is that this creates the possibility of a windfall for the last seller. Suppose, for example, you have ten parcels of land that stand in the way of a development that will be massively beneficial to the community, either for economic contribution or other improvement in the quality of life. Even if nine landowners sell willingly at something close to market price, the last "blocking" landowner will be able to extract massive surplus "rents" because he will have an effective veto by virtue of his ownership of one small bit of land. Because of the risk that this would happen, most private developers would not even initiate a project under which this blocking scenario might unfold. Therefore, if you side with the Kelo dissent, you have to be comfortable with the idea that big private "public space" developments will be increasingly difficult to do, and in many cases impossible.

Second, you can "socialize" these projects to satisfy the "public ownership" defintion that the supporters of the Kelo dissent propose. That is, had the Kelo dissenters actually prevailed, you could still solve the problem of the blocking landowner by making municipalities partial owners of all of these developers. Then the "taking" would be for a "public use" even according to literalists who equate "use" with "ownership." But do libertarians really want to create a huge incentive to socialize developments that otherwise would be in private hands? Perhaps I am sensitive to this living as I do in New Jersey, but it seems to me that the last thing the world needs is more government involvement in real estate development. Yet that is exactly what would happen if the Kelo dissenters had prevailed.

OK. Whack me with your clue bats.

Posted by: TigerHawk at June 24, 2005 03:55 PM

I have to back up TigerHawk, although l also don't know the specifics of the case. So I'll limit my remarks to the general concept of public domain. Public domain, when used properly, doesn't involve taking something from someone and giving it to someone else. It involves taking something from someone and giving it to everyone. If not for public domain, New York would not have a Central Park, or Lincoln Center, and wouldn't have had a World Trade Center. Should those things never have been built?

When public domain is used responsibly, as it generally is, the land, regardless of who owns it, is generally less than desireable, and the gov't pays above market value to whoever owns it. One of the worst slums in New York was torn down to build Lincoln Center, which now houses the Metropolitan Opera. The owners of the slums got more than they were worth, the city found better housing for the people who lived there, and New York got a beloved cultural institution. Sounds like a win-win-win.

As far as this malarkey:

> that government has no “legitimate interest” in taking the property of one person and giving it to another person.

I'd say that "providing for the general welfare" covers this pretty well. I realize that a lot of conservatives hate the idea of contributing a dime of their money to society, but if the government didn't take our money to give to others, there'd be no firefighters, no police, no army, no navy, no schools, no hospitals, few paved roads, most of the country would be without electricity, and the internet? Faghettaboutit.

Pooling our money to provide for the general welfare isn't something the government has no business doing - that's what government is. If our money isn't being spent wisely, we need to elect smarter, wiser people to spend it, not descend into anarchy.

Posted by: schroeder at June 24, 2005 04:30 PM

No, no, no.

First of all, the Constitution is the foundation of all law in this country.

We are a Republic. If we don't like what the Constitution says, we can change it, but we have to do it through the democratic process - by a vote.

Not by having 5 people say so. And the language of the C could not be clearer:

"nor shall any person ...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

But in the specifics of this case they are not taking your home to build a public road or something like that that everyone can use. They can take your home and give it to WALMART, or a health club or marina (as in Kelo) some other PRIVATE developer or a corporation. All on the pretense that it will raise tax revenue or bring in jobs. "Public domain" is being stretched to the breaking point.



And furthermore, the people who will lose their homes are not the rich, but poor, uneducated, and underprivileged who can least afford to hire lawyers and defend themselves.

We do not get to ignore the Constitution because we do not like what it says. It's the law.

Posted by: Cassandra at June 24, 2005 04:47 PM

Fine, but you did not engage my more interesting question, which is whether we would want to amend the Constitution had Kelo turned out the other way. My point is that while the Kelo dissenters [apparently -- still haven't read it, although I've printed it off] propose a reading of the Fifth Amendment that is superficially appealing to libertarian property devotees such as myself, I wonder if it would not lead to a result that would be worse: public-private ownership (with all the corruption that entails) just to meet the test that public "use" means public "ownership." Put another way, does the public "ownership" standard that you defend so strongly make sense in a world where (i) there are essentially no accepted limits on the activities that government may engage in, and (ii) we are running out of space.

Under your view of the world, you can "take" all the land you want (as long as your compensation is "just") so long as the government ends up owning it. Is that the result we want? Do we really want the local government to become Wal-Mart's landlord? To me, that's a marriage made in hell, but it is the obvious result if Kelo were decided differently.

So my question remains, had Kelo been decided the way you think it should have been, would you support a Constitutional amendment to overturn it? If not, why not?

Posted by: TigerHawk at June 24, 2005 05:07 PM

A courthouse is public use, roads are public use, police, army, navy, are public use. Wal-Mart is not public use. It is private use. The fact that Wal-Mart will pay more taxes than my house doesn't make it public.

Would you support the gov't taking your grandmother's house because when Bill Gates builds his mansion on it, it will provide larger tax revenues? The court decision essential says that that is OK.

If Bill want's to buy my land for a mansion, or a factory, or an office complex, he should have to buy it just like everyone else.

Posted by: Masked Menace© at June 24, 2005 05:08 PM

I'm not sure I understand you completely. So I may be off in my thinking. Secondly, I am not a lawyer.

I would not say that the gov't "owning" the land that a Wal-Mart sits on changes anything. It would still be private use.

This differs from roads that are gov't owned, but private citizens use because I can't run a toll booth on the road for my own personal profit.

Posted by: Masked Menace© at June 24, 2005 05:16 PM

But TH, what Kelo did was make local government a silent partner in real estate development and big business. And that's wrong and it's dirty. Why can't you see that?

One of the implications of Kelo is that the government can take my home from me, sell the land to a developer who will now build NEW HOMES in a gated community that I cannot afford to live in, just because those new homes will bring in more tax revenue!

The "public" will not have an equal chance to live in those homes. They won't even be allowed in the front gate! I just lost my home for some mythical pro-rata share of future tax revenue.

Actually TH, I believe that, absent a COMPELLING state interest, the takings clause should not be invoked at ALL. And puh-lease don't go all legal on my behind, because you know I'm not an attorney.

The public does not NEED a civic center. They do, arguably, NEED roads. And schools. And even government buildings. And maybe libraries. I'll buy off on those things.

If the government can demonstrate that they NEED a road and THERE IS NO OTHER WAY than to deprive a private citizen of their home with equitable compensation, then fine. That is lawful.

But a civic center? No. That is a WANT, not a NEED, and the principle of private property ownership is far too precious to compromise. Where does that slippery slope end?

The public does not NEED WalMart or GM or MicroSoft and the potential for corruption is just too great.

Posted by: Cassandra at June 24, 2005 05:39 PM

Just to amuse you, TH darlin', this is one of those issues that almost...almost makes poor Cass mad enough to contemplate [shudder] ...civil disobedience.

Posted by: Cassandra at June 24, 2005 05:41 PM

Civil disobedience?!? Say it ain't so! :)

Posted by: TigerHawk at June 24, 2005 05:47 PM

I'll write more in a day or two when I've actually read the case. Bein' in France and all, I've gotten behind. And besides, I'm late for meeting the family at Applebee's (how far the mighty have fallen).

Posted by: TigerHawk at June 24, 2005 05:49 PM

"conservatives uniformly seem to hate this decision, as they should, and most liberals are hating it too."

I can't think of ONE sould who would be in favor of this ruling! Heck, I actually agree with Cassandra and Masked Menace on this.

And... before you say there are people who are in favor... such as kickback politicians and rich developers... I'll just point out now that they DON'T have SOULS :o)

I believe that it is good for the wheels should spin faster at the legislative and executive branch... but should turn VERY slow at the Judicial branch!

Posted by: Jim at June 24, 2005 06:50 PM

Okay, I read the comments and here is where Da Bug
stands: It is MY property and I pay taxes to the corporation of either the county, city or township
for certain services. I can opt out of those services too and just not sell.

The fuzzy logic behind public access is that while the public has access to the mall, they do not own nor pay into it's upkeep. There is no vested interest. I find it interesting that in order for Wal Mart and other bidnesses to expand, the places where they want to build have to be condemned as eyesores and then sold at below market value if there are houses there.

Then the corporation (even though Wal Mart has public stock I do not own any stock)gets a tax break on top of it all. Sea-Tac airport up in WA state wanted to build a runway and forced people out of their homes to do so. The houses are STILL there, boarded up and yellow taped off after nearly five, six years.

Absolutely sick. Is there any way to secure your ownership either by a land patent or general deed?

Posted by: Cricket at June 24, 2005 11:15 PM

This will be one of the few times I agree with Scalia, Thomas, Cassandra, et al.

"Secondly, I don't see this as a state vs. federal argument at all but an individual vs. government issue. The right to own property, like the right to be secure in your home, the right to be protected against unreasonable search and seizure, and the right to liberty, are fundamental rights. It doesn't get much more basic than that. You only have so many elemental rights: life, liberty, property."

Righ on, sister! This could cause a rebellion.

The only real defense now is to take over your local city/county governments and planning board.

Public use is a road, water or sewer utility, military base, or school. It is not a shopping center or a theme park. Or a baseball stadium. There is all kinds of scope for mischief and corruption here.

Of course, using this same municipal power of eminent domain to trample private property rights is how the Texas Rangers stadium got built, thereby making a certain George W. Bush his fortune.


Posted by: Old Testament Liberal at June 25, 2005 01:12 AM

If the government took my property just so it could hand it over to a private interest that I didn't want to sell to, I have two words for that situation: Howard Rourke.

Posted by: Hummer at June 25, 2005 11:19 AM

I've seen some unbelievable STRETCHES by people in an effort to take a potshot at President Bush, but never one quite so blatant, or so misplaced:

Old Testament Liberal's link is to an op-ed piece by Nicholas Kristof, which concedes, "In fairness, Mr. Bush was simply being a hard-nosed businessman. He did a great job leading the owners' group, and it's hard to take seriously the caricature of him as unintelligent when he led the Rangers so lucratively."

I am so tired of people bashing my president!

Posted by: JannyMae at June 27, 2005 01:45 AM

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