Intellectual Consistency

Scott Lemieux, guest-blogging at Ezra Klein's, on today's Supreme Court decision in Kelo v. New London:

The lesson here, again, is the the Constitution does not provide a remedy for every bad public policy.  Combining upper-class tax cuts with increased pork-barrel spending, like the current administration is doing, is awful public policy, but it's constitutional, and the same goes for Robert Moses' grandiose road-building schemes.  You beat them the way the West Side Stadium was beaten; through politics.  Expecting the courts to protect poor property owners by determining which policies are legitimate public interests is a sucker's bet.

Right.  On a narrow point first, it's the just compensation requirement that is a more powerful guarantee of fairness than the public purpose requirement in takings law.  But more largely, we liberals like to define the scope of governmental interest widely, and we should.  Conservatives have been on a crusade to knock back things like the scope of the commerce clause to advantage other power interests - social conservatives and the wealthy.  Liberals like having a semi-accountable source of power in the government to counter them.  But power is amoral, and like Scott says, don't expect judges to fix the problems of the abuse of power by circumscribing its limits.

Update June 24: Moron-Americans weigh in.
   

Comments

[wishful]

Maybe we should develop and back a policy that grants as part of "just compensation" a percentage of any profit for the next X (50?) years for any property that is "taken" with the purpose of then transferring by any means to a private entity like a developer or individual. Also including any profit on the eventual sale of said property.

What do you think?

[Mithras]

Take the profit of the private party out of it, you mean? I see why you suggest that, but I think it's hard to draw a line.

Say land was appropriated to build a road. Everyone agrees building roads is a "public purpose", because everyone can use a road. But not everyone uses a particular road - some people and businesses get more use out of it than others. They make money as a result of the existence of that road. Why exclude them from the special tax?

Government action burdens some and benefits others. Obviously, the action should be taken which has the best result for all concerned and treats people fairly. But my argument is, that's a political judgement for the voters to make, not a constitutional principle.

[wishful]

I agree that the the result should be fair. I don't yet know if I think this is a Constitutional issue. The land is being taken for other than direct public use, so it may be.

Let's assume it is not a Constitutional issue then.
In answer to your question, I do not mean to take the profit of the private party out of it. I mean that both private parties should be treated fairly. The profit should in a small but proportional part accrue to the first private party (the one with less money and power--the original homeowner forced to sell). The second private party, the private developer, will profit from the aquisition of the first private party's forced selling. The first party should have a legal interest in the profit of the second party, since he made it possible in the first place.

Your example of the road is a good one, but I believe that it supports the fact that there is a real difference between takings for direct public use and those for transfer of property to another private entity, with only secondary public benefit. As you say, some will use the public road more than others, but that is the choice of the some and the others, who self-select. The owner of the road is the public, and they presumably are not making a direct profit from owning the road, so none should accrue to the private property owner whose land was taken for the road. The business owner who locates in the newly profitable high traffic area should purchase his land from a private owner, who can choose to sell or not, and if the land is highly desirable such that a business expects to make lots of money, he can then offer the property owner more to entice him to sell at a fair price (which includes the fact that the property is now more valuable to BOTH of the private parties due to the existance of the public road. Why should the gov't take the private property of a citizen against his will, sell it to another citizen, with the express knowledge that the property will be more valuable by virtue of this transaction, without the first party being party to the increased value? That is a traveaty of what we say capitalism is.

My point in all that is that we can resolve these things at a local or state level by legislating that any taking must include a fair definition of "just compensation". If another party is going to make out disproportionately because the government forced such a transaction, and calls it "for the public good", something is wrong. We can and must level the playing field. The rich and powerful should not be able to dictate that my stuff is worth less just because I own it and I am not rich and powerful--as soon as they own it, it suddenly becomes very valuable, and I get none of the benefit.

[Gib]

From a liberal perspective, any concern about the possibility that this decision may limit the federal government's power to review potential abuses of power by state and local governments?

In other areas - education springs to mind first - the liberal position is to support federal involvement to try and ensure equal treatment and applications of standards, while the conservative view is to trust local governments to know what's best for their communities. With regards to eminent domain, Kelo limits the options available to owners of condemned property to seek a review of the local government's actions. I understand signing off on Thomas' originalism is probably less palatable, but doesn't this decision actually harm the liberal goal of an active government ensuring accountability?

[Mithras]

From a liberal perspective, any concern about the possibility that this decision may limit the federal government's power to review potential abuses of power by state and local governments?

Not from me. I haven't busted out my Nowak & Rotunda recently, but I don't think public use requirements were a big check on local government abuses.

Interestingly, here's what N&R does say:

The early interpretation of this public use test was broadly viewed as properly exercisable for "the public good, the public necessity or the public utility".

The broad interpretation of the public use limitation was abandoned in the later half of the ninteenth century, however, in order that the courts might better control the exercise of eminent domain by private enterprises to whom the power had been delegated.

N&R, Constitutional Law, 5th Ed., sec. 11.13. Eventually, the Court returned the test to its older, broad scope, so that the publice use requirement is "coterminous with the scope of a sovereign's police powers". Also interestingly, the leading cases cited (at least in the 1995 edition) were two that liberals would think "good": a Hawaii case in which land was taken from title holders and sold in order to decrease the concentration of land ownership, and a D.C. case of the federal government doing urban renewal.

So, long story short, eminent domain is good when it's used for good things.

In other areas - education springs to mind first - the liberal position is to support federal involvement to try and ensure equal treatment and applications of standards, while the conservative view is to trust local governments to know what's best for their communities.

If you say so. That seems to have flipped since No Child Left Behind. Or at least, liberals are for equal funding, and conservatives are for equal application of standards. In general, liberals like local school board autonomy.

With regards to eminent domain, Kelo limits the options available to owners of condemned property to seek a review of the local government's actions.

True, but that review is hardly on the merits of the actions, but instead on whether the benefit is public enough.

All in all, everyone can sympathize when someone's family house gets yoinked by city hall. But that's the nature of eminent domain. Someone would have to show me that the rate of houses being condemned had increased to get me worked up about this. (And no, I am too lazy to check to see if anyone has already done that analysis.)