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June 23, 2005

Takings and the Public Interest

In a case that has split progressive bloggers--with such luminaries as Atrios and Belle Waring taking the side of the dissenters today--the Supreme Court has ruled in Kelo v. New London that New London's condemnation of property for private economic development was a constitutional taking.  This was expected after the oral argument, although the 5-4 decision was closer than many court watchers had anticipated.   For reasons I have discussed previously, I believe this was a good decision.  The key passage from Stevens' opinion is this: "[t]he disposition of this case therefore turns on the question 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 judgments in this field."  I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle, and I understand what O'Connor means when she suggests that "for public use" might as well be deleted from the Fifth Amendment.  But once the courts start making determinations about what constitutes the "public interest,"  the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run.

It was interesting to hear the calls to NPR in New York this morning after the decision was announced.  People were outraged, taking about the remarkably destructive construction of the Cross-Bronx expressway (immortalized so memorably in The Power Broker and  All That Is Solid Melts Into Air), and about Jane Jacobs saving the Village from a similar fate.  It's important to know that today's decision would be wholly irrelevant to cases like this.  Unlike Kelo, where the Constitution's text can fairly support the readings of both sides, cases where land is expropriated for transit projects are easy; they are unquestionably constitutional takings.  If building roads isn't a "public purpose," it's not clear what is.  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. 

While it will be buried, another interesting case came down today.  The court, unsurprisingly, ruled that Michigan could not deny counsel to indigent defendants because they had entered a guilty plea.  What's a little dismaying is that the decision was 6-3.  Three guesses as to the dissenters, and the first two don't count....

--Scott Lemieux

June 23, 2005 | Permalink

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» Intellectual Consistency from Fables of the reconstruction
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 [Read More]

Tracked on Jun 23, 2005 5:01:42 PM

» Progressive Principles from The Bit Bucket
Matt approvingly cites this rationalization for the Kelo decision: I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle, and I understand what O'Connor means when she suggests that... [Read More]

Tracked on Jun 24, 2005 9:35:25 AM

» Symmetrical disinformation from locussolus
From Justice Thomas's dissent (thanks to Will for pulling the quote): 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 tak... [Read More]

Tracked on Jun 24, 2005 10:07:28 AM

» Intellectual Consistency from Fables of the reconstruction
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 [Read More]

Tracked on Jun 24, 2005 4:23:39 PM

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Comments

So when Wal-Mart bulldozes your home with the complete approval of the local government, you'll sit back and say, "Sure, go ahead"!

Yeah, right.

Posted by: fiat lux | Jun 23, 2005 4:09:26 PM

" But once the courts start making determinations about what constitutes the "public interest,"  the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run."

I don't see how this follows at all. In the UK numerous laws have public interest defences, so the courts are constantly defining the 'public interest'. I don't think they've done a particularly good job of it, being too expansive when it comes to privacy, and too constrictive when it comes to secrecy, but it hasn't led to them becoming an economic regulator at all.

Posted by: Ginger Yellow | Jun 23, 2005 4:16:31 PM

Let's just hope that the local pols who did this to Kelo et al. can't get elected dogcatcher after this.

Tho they can probably go to work for Pfizer ...

Posted by: Anderson | Jun 23, 2005 4:33:39 PM

I can't help but think about the rows and rows of empty strip malls and bombed out looking gas station skeletons around. It is as if developers over-build one part of town until it maxes out, and then it is left to shrivel up and die while the same developers (or their heirs) dig up another end of town and do the same thing all over again. The owners stuck with the old buildings always try to hang on for a while, but there are only so many pawn shops and bail bondsmen to go around. Then taxes and disputes hang up everything indefinitely while a bunch of ugly buildings rot and waste space that would be better used by trees and squirrels.

Posted by: sprocket | Jun 23, 2005 4:54:47 PM

Trees and squirrels don't provide jobs or a tax base. Owners of "private property" who wish to keep their land development-free better watch out. Its not up to them to decide what should happen to "their" land, its up to any gov't body who thinks they have a "higher use" for the space.

Of course we don't have to worry. I'm sure the progressives will always control a comfortable majority of all legislatures going forward.

Posted by: Neil Paul | Jun 23, 2005 5:31:46 PM

Stupid decision because this gives any business the right to take away our private property if they show that they can do something more publicly beneficial with our land than we can.

How is turning over private property to a private developer so that they can build a complex going to benefit the public? Is it because they can pay more in taxes than you or I can? And what happens when some developer bribes a local politician(s)?

Posted by: inLA | Jun 23, 2005 8:05:19 PM

inLA Why do you think realtors own city councils ? The developers are or own the politicians. It's just a matter of what they think they can get away with.

Posted by: opit | Jun 24, 2005 12:49:11 AM

I'm with Neil Paul on this one. What this decision does is give the green light to every city council that the ultimate value of any land under their jurisdiction is measured by the property tax value. Good bye, trees and squirrels. Hello, Wal-mart, strip malls, and little boxes on the hillside made of ticky-tack. If the city council thinks your little slice of arboreal heaven is worth more as a Target, so much for you and your trees; a Target there shall be, and you have no recourse but to enjoy your discount shopping.

Posted by: NBarnes | Jun 24, 2005 1:10:39 AM

I guess the only thing to do is go before your city council and fight like hell so that citizens' property doesn't get forcibly bought out from under them. If it's any consolation, reaction to Kelo suggests that plenty of people will be on your side.

Posted by: Neil the Ethical Werewolf | Jun 24, 2005 2:25:10 AM

Neil- but isn't that a pretty good outcome?

I mean, in the end, I haven't seen anyone on the supreme court, nor in the blogosphere, give a coherent explanation of what "public use" means, other than "I know it when I see it."

So it gets fought out in the legislature. Why isn't this a good thing?

Posted by: Patrick | Jun 24, 2005 10:38:51 AM

NtEW, Patrick: Exactly. There's a sort of defeatism to some of these comments, an idea that this was the only possible forum in which this kind of bad policy can be defeated. That's simply not the case.

Posted by: djw | Jun 24, 2005 11:26:17 AM

"What this decision does is give the green light to every city council that the ultimate value of any land under their jurisdiction is measured by the property tax value. Good bye, trees and squirrels. Hello, Wal-mart, strip malls, and little boxes on the hillside made of ticky-tack."

First of all, city councils have had a "green light" to do this since the beginning of the republic. There's nothing no here; "public use" in the context of the Fifth Amendment has always been construed to mean "use by the government," not some substantive definition of the public interest. There's nothing new here. And I'm just not persuaded that the meaning of the amendment should be strained in order to favor one model of development over another. You might prefer Portland's development model to Phoenix's, but it strikes me that the Constitution is silent on the subject, and the courts are not well-positioned to make these kinds of material and aesthetic tradeoffs. (And it's worth nothing, again, that this decision would actually stop an extremely small percentage of state-directed development.)

"Of course we don't have to worry. I'm sure the progressives will always control a comfortable majority of all legislatures going forward."

The thing about democracy is that sometimes you lose (and what you say applies at least as much to the courts, so it's neither here nor there.) But history certainly does make clear that relying on the courts to protect the economic interests of the poor is unwise indeed.

Posted by: Scott Lemieux | Jun 24, 2005 11:36:37 AM

There *is* something new here. In the past, "public use" has largely been restricted to truly public infrastructure such as roads and bridges (plus an exception crafted for "blight"). No more.

And, surely the courts have a role here. One need not be a strict constructionist to worry about what looks like a pretty clear violation of the plain-meaning of the Constitution.

Enough talk, here's how to take action to mitigate the effects of Kelo: join the Castle Coalition (CastleCoalition.org). The usual disclaimer: my only affiliation is the modest $ I've contributed over the years.

Posted by: Scott Lawton | Jun 25, 2005 12:02:56 PM

Here is the email concerning a petition for rehearing of Kelo.

Dear John:

Thank you for your continued interest. I will relay
and discuss the same with the other attorneys. Take
care.

Scott

----- Original Message -----
From: John Ryskamp
To: sawyerlawyer@myeastern.com
Cc: saviak@proprights.com ; jberrios@herald.com ;
ligree@nytimes.com ; k.moran@theday.com ;
mckenzie@uic.edu ; TEdwards@cdpublications.com
Sent: Saturday, June 25, 2005 3:40 PM
Subject: Kelo

Hi Scott:

You represented the Kelo homeowners before the
Supreme Court. I have no idea whether you are
planning to petition for a rehearing on different
grounds, but I think you should. This time you should
argue not to raise the level of scrutiny for eminent
domain; rather, you should argue to raise the level of
scrutiny for housing itself. I think the Court is
waiting for you to make that argument.

In the Raich case, Justice Stevens, writing for
the Court, just recently said that the Court is
willing to listen to arguments for raising the level
of scrutiny for the underlying facts of a case. As
you may know, the Raich lawyers argued to raise the
level of scrutiny for the Commerce Clause. In Kelo,
you argued to raise the level of scrutiny for eminent
domain. Neither argument work.

But a different argument will work. Justice
Stevens (who also wrote Kelo) said in Raich:

"The case is made difficult by respondents’ strong
arguments that they will suffer irreparable harm
because, despite a Congressional finding to the
contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not
whether it is wise to enforce the statute in these
circumstances; rather, it is whether Congress’ power
to regulate interstate markets for medicinal
substances encompasses those portions of those markets
that are supplied that are supplied and consumed
locally….[Respondents do not contend] that any section
or provision of the CSA amounts to an unconstitutional
exercise of Constitutional authority."

He is saying that the "question before us" was the
wrong question, and that the lawyers should have
argued the underlying fact of medical care. They
should have argued that the law "amounts to an
unconstitutional exercise of Constitutional authority"
because it violated the right to medical care. They
should have argued that there is an individually
enforceable right to medical care.

Likewise, you should argue that there is an
individually enforceable right to the fact underlying
your case: housing. The Kelo homeowners can petition
the Court for a rehearing "on the merits" (Rule 44).
The Court will grant rehearings to consider
"historical evidence" bearing on the Framers' intent.
Reid v. Covert, 352 U.S. 901(1956). The Kelo case is
based on the Fifth Amendment. When James Madison
presented it to Congress, he said that it "prevents
every assumption of power in the legislative or
executive." This is the historical evidence bearing
on the intent behind the Fifth Amendment.

What did Madison mean when he used the word
"every?" He meant a fact of the individual. A fact
of the individual is a fact of human experience which
does not change even when government seeks to destroy
it.

A fact of the individual is one in which
government

1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed,
only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could
achieve the goal.

Housing is such a fact:

1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other
ousing;
3. Association, speech and several other
protected facts are sought to be destroyed by this
eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between
developers and politicians to use eminent domain to
turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly
tailored to achieve a compelling government purpose.

Other highly protected facts--such as protected
speech and freedom from involuntary servitude--meet
these tests. The Court is waiting for you to compare
these facts to housing, and claim that, for
Constitutional purposes, housing is identical to them.
Then the Court will raise the level of scrutiny for
housing, and you will save your clients' housing.

You may also want to take a look at Ryskamp, John
Henry, "Kelo v. New London: Deciding the First Case
Under the New Bill of Rights" .
http://ssrn.com/abstract=562521

Please let me know if you have any comments or
questions.

Cordially yours,
John Ryskamp

Posted by: John Ryskamp | Jul 7, 2005 10:13:58 PM

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