Property Rights Assault?
Dean
I've long considered eminent domain abuse to be a problem, but from everything I've read such abuses go back well over a century in this country. The stories of the abuses done by and for the railroads in the 1800s are epic, for example. This why I've been a little bemused by the angry responses to yesterday's Supreme Court decision giving broad authority to local governments to force people to sell their property. Bryan has a very thorough roundup of reactions.
I do notice that, once again, the reviled "conservatives" on the court are the dissenters who tried to stand up for everyday people. Interesting. It's not surprising if you know anything about their judicial philosophies, though.
By the way, you can read both the decision and the dissenting opinions right here. I found the dissenting opinions clearer and easier to understand.
Related Posts (on one page):
- Eminent Domain Abuse
- United We Stand
- Althouse On Kelo v. New London Decision
- Property Rights Assault?
GM lobbied hard to level an entire neighborhood of ethnic Poles in Detroit in order to build a new manufacturing plant, with all sorts of promises of jobs, improved tax base, etc.
Eventually, GM hit the skids and closed the plant down.
That was really the case that made the one handed down yesterday possible.
I can imagine that there came a defining moment in the lives of our colonialist fore bearers of the 1760’s and 1770’s when they said, “I can no longer tolerate this and consider myself a free citizen.” This is just such a moment for me.
T. Jefferson said that: “The tree of liberty must occasionally be refreshed with the blood of patriots and tyrants.” How true.
You would think that a decision which gives the full power of the nation state (the same apparatus that Rudy Rummel or Edward Luttwak might argue allows democide) to a systemic of endemic corruption between local politicians, and their largest contributors, wealthy property developers, would be opposed by anyone to the left of General Franco. Maybe I should have looked at Kos before posting.
John Sayles has a wonderful film, "Silver City", which is a depressing and scathing indictment of this process, but most people consider him a leftie.
Maybe I'm a little naive, but it seems that a necessary and sufficient condition to invoke this sort of draconian land grab would be that:
1. At least 80 percent of the equity of the project should be owned by residents of the town.
2. At least 80 percent of residents of the town own at least one share.
3. No shareholder controls more than 20 percent of the equity, directly or indirectly.
Then you could just argue from the facts on the ground that it is, by definition, in the public interest.
The reason this is odd is that the conservatives on the court - both in this case and in Raich - seem to be in favor of a higher level of judicial scrutiny and less deference to the legislature.
Where's the line between that and so-called judicial activism?
Mighty Casey (Justice Kennedy) has struck out and there is no joy in Mudville. Justice Thomas for Chief Justice.
No, the question is who gets to interpret the Bill of Rights. The clause in the Fifth Amendment says "nor shall private property be taken for public use, without just compensation." Technically speaking, I suppose you can read that as saying that you can take all the private property you like for private use, without any compensation at all; but obviously no one reads it that way. The question here is what counts as "public use," and there are ancient precedents to the effect that handing A's property over to B (A and B both being private parties) is not generally "public use." The exceptions before this case were "common carriers," railways mostly. Pfizer is not a public conveyance.
But, again, this is a case of Constitutional interpretation. If you let the States each interpret the Takings Clause to their own tastes, are you prepared to let them do the same with the First Amendment? Or the Second, for that matter? It would make for a rather interesting legal environment.
Now would be a good time to write your congress-critter and express your feelings about proposing a new law that would prevent this sort of thing. You can go to the mat, if you feel strongly enough, and make this a "do it or else you're out of office" thing. A few hundred letters like that will amazingly focus an elected official's attention.
The position that you only own property in as much as the gov't can't find a better use for it is Socialism 101.
In fact taking people's property and giving it to gov't supporters has been a favorite weapon of punishment by communists, socialists, and dictators for ages.
The response from the Left to this decision has been underwhelming, to say the least. You'd think uprooting family homes so that Pfizer could build over the land, and calling that "public use," would generate a little outrage, but nope. (Why do I think the reaction would be different if Thomas, Scalia, Rehnquist, and O'Connor had voted the other way?)
The majority opinion:
"The disposition of this case therefore turns on the question fo whether the City's development plan serves a 'public purpose'. Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgements in this field."
"Those who govern the City were not cofnronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference."
O'Connor's dissent:
"We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff."
Thomas' dissent
"There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a 'public use'."
It's fairly clear from these that the degree of deference to legislative determination is the major point of contention between the dissent and the majority. What's particularly interesting about that is that this same issue was *also* a significant point of contention between the majority and the dissenters in Raich. Other recent cases show this to be a trend: the "conservatives", particularly Thomas, often feel that the courts give the legislature too much deference in the realm of economic regulation and property rights, and that the Court should exercise more power to overrule the legislature.
I guess then we shouldn't worry about repeals of the 1st ammendment. It wouldn't endorse gov't censorship after all.
Also, a repeal of the 2nd ammendment wouldn't endorse disarming the public, so nothing to worry about there either.
The erosion of property rights is not sufficient for socialism, but it is necessary.
BK
So now the government is in the real estate appraisal and property repo business? "Developer A wants to replace Building X with Building Y and has a study which claims that the city will make more tax money if he does so."
What's ironic is that I was just mentioning to the Wife last week the importance of property rights in our history, and how that differentiated us from the Europe that our ancestors escaped from.
I guess SCOTUS is on its way to becoming SCOTEU.
Bastards.
Amazing things, those search functions. We can find every graf containing the word "deference" before you can spit!
Seriously, now,
If we're going to enforce (most of) the Bill of Rights against the states, as we have been doing for nearly a century, we presumably need some agreement on what it means. The Takings Clause can't mean something different state to state, any more than the Free Speech Clause can.
What's particularly interesting about that is that this same issue was *also* a significant point of contention between the majority and the dissenters in Raich. Other recent cases show this to be a trend: the "conservatives", particularly Thomas, often feel that the courts give the legislature too much deference in the realm of economic regulation and property rights, and that the Court should exercise more power to overrule the legislature.
Let me see if I'm understanding you rightly. Is Thomas's dissent in Raich supposed to be an instance of "the Court" seeking to overrule "the legislature"? Not the legislature of CA, anyway. (OK, this was a popular initiative, not a state law, but you see my point: so far as federalism is concerned, it was Thomas who in this case wanted to give "deference" to the self-governing citizens of a state.)
My point is this: the disagreement between the majority opinion in New London and O'Connor's dissent seems to hinge on the degree to which the court should defer to the Legislature's judgement. (I'm leaving out Thomas' dissent, as it seems to be disagreeing more fundamentally about eminent domain in general). The majority seems to think that the Court ought to defer to the Legislature's judgement in almost any case, while O'Connor seems to think that this, in effect, makes the Court irrelevant.
I am not, at present, taking sides on that issue; I'm merely noting that it's ironic that the people who think that the court should be less deferential to the legislature are also the people most given to complaining about judicial activism.
My observation about Raich is that it's similar: the majority opinion is shot through with rhetoric about how it is important to defer to the Legislature (in this case, the Congress) in its determination that regulating the use of marijuana was necessary to the general public health scheme of drug regulation, and the dissenters were of the opinion that the Court could legitimately question that Congressional determination. Again, while federalism was involved, the crucial determinant seemed to be how much the court should defer to legislative judgement.
I was responding - poorly - to this comment of yours:
"I wonder how many on the left will see this as just another gov't gift to the wealthy. Something the left claims is a rightest position despite all the liberals on the court supporting it. "
In particular, i am unconvinced of the legitimacy of your implied equivalence that liberals on the court saying that the government has the power to do such a thing constitutes liberals in general believing that it is something which sould be done.
In my experience, the left thinks that as a policy matter government gifts to the wealthy are a bad thing. But that doesn't mean they believe the state doesn't have the power to do it; merely that they think the state shouldn't do it.
I still don't like it. But I'm becoming convinced that the problem here is the corruption of local governments, not eminent domain.
So yes it might seem a little ironic that in this case the federalists want to see the courts restricting the actions of a local government, but only because in their reading this is one area where, as in the case of, say, the equal protection clause, the Constitution pretty clearly sets a uniform law of the land.
On the other hand, I admit to my own ambivalence; people have been squawking over eminent domain abuses for two centuries now. This particular interpretation simply takes the position that "public use" is whatever your local elected officials want it to mean, and if you don't like it you do have an option here: it's called free speech and voting.
I also note that not a single thing in this decision means government may simply seize your property; they have to give you just compensation, which the courts pretty universally agree is the fair market value, and which in most cases means you'll get somewhat more than if you sold on the open market since most governments don't want to be dragged into court by having someone say you didn't pay a fair amount.
Given that liberals claim conservatives are the one who like the gov't giving gifts to the wealthy, it seems a little backward that it's the conservatives who say it's not legal and the liberals who are saying that it is.
BK
P.S. You are correct that there is not a 1:1 relationship between can and should, but given the socialist tendencies of todays left, I'd say theres a pretty good correlation on this issue.
P.P.S. Have a good weekend everybody.
What is "fair market value" if your bit of land is the only thing standing between a corporation and its development project? Seriously. My impression is that "fair market value" is taken to be what a house would fetch in the total absence of a developer's serious desire for the land, with a small sop to prevent lawsuits, as you say.
I can't see anything in the majority opinion that would prevent a city from condemning any poor neighborhood and turning it over to a developer who'd build luxury homes on it — the "just compensation" being obviously gauged to the value of the land before it was redeveloped, not after. Great value to the city, of course, which gets a bunch of property-tax-paying wealthy citizens and loses a bunch of unprofitable poor ones. Count me among the people who think this is a devil's bargain.
Yep.
You know what? I think I may run for City Council.
I recommend that others annoyed by the implications of this decision do the same.
Not really. Generally, when one complains about judicial activism, the complaint is not over the fact that the court struck a law down, but over the fact that it did so with no solid basis in law. On the other hand, when a statute violates the clear language of a constitutional provision - in the written constitution, that is - most of us would agree that in that case, courts are supposed to strike the law down. Refusing to enforce a constitutional provision that is there is no less lawless than "enforcing" a provision that is not. Both are commonly referred to as "judicial activism," although in the case of the former, "judicial inactivism" may be a more accurate phrase.
But I think you will seeing a lot more of that. Tax revenues are down all across the US, as a result of a continuing and perhaps endless taxpayers revolt. The local governments which survive on these curtailed revenues will now be impelled toward freer use of eminent domain powers to get rid of low-taxable land uses and replace them with private land uses that generate a higher rate of tax return.
And in case you think otherwise, the lobbies that represent counties and municipalities in every state legislator speak a lot louder than many times their number of ordinary citizens.
In any case, the US Supreme Court has spoken, and barring a constitutional admendment that addresses this issue, their is the final word.
Arnold Harris
Mount Horeb WI
The way to solve the problem of misuse of eminent domain is to hold your elected representatives liable and to account.
Every American here has a congress person and a senator at the federal level, and the equivalent at the state level. You also have city and county officials. Every one of these people is elected to the position.
For under $5 in postage--less if you pick up the phone or use e-mail--you can make your feelings very clear. And when the next election comes around, you'll know whether or not your officials were listening to you or not.
How about some proposed texts of letters to elected officials, instead of bitching about the court?
And the problem with expecting any such amendment, now or in the future, is the state legislatures that make the yes or no decisions on any such action, cannot go against the will of their constituent local government units. For all these local governments -- counties, municipalities, school districts, fire districts, emergency medical districts -- revenue from property taxes literally are the sustainance than enable them to operate.
The legislatures and local boards of supervisors and commissioners of these states and local governments, as elected officials, cannot long survive demands of their voters to reduce property taxes for individual properties. Therefore, they will find they have little option but to find means to continually expand their local tax bases.
And the means to expand their local tax bases come from comparatively large industrial, commercial and residential projects provide a much more significant taxes than small, old single family dwelling units.
Thus, expanded use of eminent domain is here to stay.
Arnold Harris
Mount Horeb WI
Is majority approval and "due process", by whatever local standards of due process apply, all it takes for it to be A-OK? If it's not OK under a totalitarian state, does democracy of some form wave the magic wand? As long as there's a vote and you get one vote, is that all it takes to allow a vote that your property should be taken from you and redistributed to others? From each according to his ability, to each according to his needs, as long as we have a vote first?
Again, I'm not saying this to throw bombs or make inappropriate or over-the-top comparisons. Lord knows there are enough of those in the air lately. :) All I know is, I think about the basic idea of this kind of taking, and I can't see how you can draw line. And yes, that means sometimes the majority is going to be inconvenienced by the minority. If it weren't so, we wouldn't need to call them "rights".
If you can show me how to draw that line, I'd be interested to hear it.
Arnold Harris
Mount Horeb WI