Thursday, June 23, 2005

Eminent Domain Case

For those of you who do not follow the Supreme Court decisions as closely as I do, Kelo v. New London was handed down today, bringing with it a stinging defeat for all private property owners across the country. The facts of the case, very briefly, are as follows: New London, Connecticut, attempted to exercise its eminent domain power by purchasing, then razing, the homes and businesses of several dozen residents in order to make way for a new health club, office building and hotel. Many of the residents' families had lived in those homes for generations. The eminent domain power of local and state governments allows municipalities to appropriate private property to facilitate construction of public works, utilities, and when an area is "blighted." Some of us crazies think that even that is going too far against the rights of private property owners, but such is the law. What today's ruling does, however, is extend the power of eminent domain miles further down the road towards communal living. The Supreme Court ruled that municipalities may take (take is actually the appropriate constitutional word) private property in order to increase the tax base through private development. Here is an example. Your house is in a really prime real estate location in a city with a diminishing tax base. So, the city takes your house and land, then turns around and sells it to a PRIVATE DEVELOPER so he can build luxury condominiums there, thus increasing the tax base, and benefiting the community. According to the Court, localities are in a better position to determine what will benefit the community. That's right - economic prognostication is now a legitimate tool of eminent domain. I wonder whether the 'town' of Berkeley, California, believes that it is 'economically beneficial' to socialize all property, and allow the government to make any and all decisions concerning development? If so, this decisions seems to allow them the right to take (for 'just compensation,' a term with quite a bit of litigation wiggle room) the private property of everyone within the city limits, as long as they believe it will create jobs and increase tax revenue. As Justice O'Connor points out in her dissent (quite a good piece of writing, too, you should check it out when it gets posted at, this decision will hamstring small business owners at the expense of large conglomerates. This is a dark day for the 5th Amendment.


Anonymous said...

Property rights should always be respected but let's not forget that the Supreme Court overstepped its bounds when deciding on local issues in the first place.

Anonymous said...

Fuck it all, let's just elect Castro president and be done with it.

Ben Widlanski said...

Regarding what anonymous said at 12:14 - The Supreme Court was not sitting in review of a lower federal court decision in this case, but was sitting in review of a state supreme court decision. As the case was brought under the Fifth Amendment takings clause, the Supreme Court has jurisdiction to hear the matter, and is, in fact, the Court of last resort on all constitutional issues. Barron v. Baltimore was an eminent domain case from 1833 which established that the Bill of Rights did not extend to state governments, and allowed the states to take property from the citizens WITHOUT just compensation. In fact, Kelo brought the action claiming a breach of the fifth amendment. The state was the aggressor here (as is often the case - its not always the federal government who is the bad guy), and, had the case come out the other way, the Court would have been protecting the individual's rights against encroachment by the state. Lest ye forgets - Brown v. Board was a "local issue," where the Court protected citizens' rights against the state of Kansas. While I agree that the Court should be wary of tredding on state issues of autonomy, this action was brought under the federal law (even though it was brought in a state court), and not the state law, and was brought AGAINST the state, not BY the state.

Ben Widlanski said...

I realize I forgot to say that, while Barron v. Baltimore has never been explicitly overturned, constitutional doctrine over the past century has rendered it effectively null. While the Bill of Rights is still seen only as a constraint upon the national government, the 14th Amendment and emergence of substantive due process and equal protection doctrine has "merged" most (but not all) of the rights contained in the first 10 amendments, and established that states are bound to respect those rights.

Anonymous said...

I am not disputing with you that we have arrived at the point where States are being forced to abide by the Bill of Rights (and many other Federal rules). What I am saying is that the Federal Government should not be telling State governments what to do. The Constitution gives the Federal Government certain powers. Telling States what they can and cannot do with property within the States, is not one of them.

Quote for me the section of Article III that applies here.

Ben Widlanski said...

I think you may be slightly missing the point. It isn't about Article III, but about Supreme Court precedent. This is a "case, in law and equity, [that] aris[es] under this Constitution, the Laws of the United States..." because the 5th Amendment has been found to extend to the states in cases of eminent domain. If you want to argue that the 5th Amendment does not extend to the states (or should not extend to the states), thats fine - just remember that the 5th amendment's takings clause provides protections for citizens who have had property taken without "just compensation." Without the 5th Amendment, the STATES could take the property of anyone, anytime - just like the City of Baltimore did to poor Mr. Barron in 1833. At least with the 5th Amendment protections, property owners get "just compensation" for having their lives ruined - without it, they get a big fat nothing.

Anonymous said...

It has everything to do with Article III. But let's move onto the 5th amendment. I am in fact arguing that the 5th amendment does not apply to the States- in fact that is precisely what signers of the Constitution wanted before they were willing to put their signitures down.

It is a terrible argument, to come up with an example of what might happen if the 5th amendment does not apply to the States. If the Federal Government does not pass a law that says we cannot kick people repeatedly in the face, people in the States might very well do so. Does this mean the Federal Government now has jurisdiction in this realm over the States? The point is that local jurisdiction by its very nature, is superior to anything else.

Thomas Woods (undergrad Harvard, grad Columbia), author of "The Politically Incorrect Guide to American History," recently argued at a seminar for the Mises Institute, just how much the Founders (and others) feared Federal power over the States. Yes, that includes all the amendments in the Bill of Rights. Audio clips of his lectures are on the Mises website.

Precedent arguments are also bad because lots of terrible practices can be precedent. You should debate the policy itself, not how long it has been around.

Ben Widlanski said...

The signers of the Constitution put their signatures on that document well in advance of the Bill of Rights' ratification. Putting that aside, I agree with you that local government is superior to nationalized government, and that the federal government should remove its hand from the state's honey pot. However, simply because I believe that small government is better than big government and that states are better equipped to handle the problems within their own borders does NOT mean that I have a right to disregard precedent every time I feel like it. Our system is a common law system, meaning that decisions of the courts are as binding as decisions of the legislature. If you want a civil law system, where everything is spelled out in front of you, word for word, go live in France or Germany. Otherwise, except the fact that Brown is law, and that no matter whether or not you like it, the 5th Amendment is going to be extended to the states. There are idealistic arguments, and their are realistic arguments. It is foolish and naive to believe that the Supreme Court is going to reject over a century of accepted jurisprudence. If you asked me, point blank, whether I think the New Deal decisions were wrongly decided, I would say YES - in a heart beat. If you asked me whether I thought they should be overturned today, 60 years later, I would take a much longer time in answering. Yes, bad precedent can become law, and we should not put 100% faith in the decisions of previous courts, but similarly we must not neglect that which came before us.
The reason the federal government extended the 5th amendment eminent domain clause to the states is because the states DID NOT pass laws protecting the private property of the citizens therein residing. They have had nearly two centuries to do so, and so far - nothing. Would I prefer a state or local law? Yes. The fact is, we don't have it. We don't live in a libertarian paradise where the government is nice and tiny, people pay for everything they receive, and the ownership of private property is a fundamental right on par with that of life and liberty. Until we do live in that place, we have to make do with the system we have, and hope that the laws we do have can be worked towards increasing the personal autonomy of individual citizens.
Finally, while I agree with you that local government is preferrable to national government, that is purely a value judgment, and NOT a matter of incontrovertible fact. When you said "The point is that local jurisdiction by its very nature, is superior to anything else," you were simply making an assertion. One I happen to agree with, but an assertion nonetheless. Don't just tell me it's better - tell me why.

Anonymous said...

"Until we do live in that place, we have to make do with the system we have, and hope that the laws we do have can be worked towards increasing the personal autonomy of individual citizens."

You're right. With views like yours, the best we can do is hope. Of course hope means little without action.

Your advocacy of this case does not help further liberty. It goes in the opposite direction. Let me give you an example of what would further liberty (something you could actually do rather than hope for).

1. Make people aware that the supreme court has no jurisdiction here. Use your knowledge of "local is better" to convince them.

2. Go to State governments and convince them to enact legislation protecting property rights.

This way, we get exactly what you want (protection of property rights) AND we do it through Constitutional (liberty-protecting) means.

You, unfortunately, went the other way. But don't get me wrong, you can keep hoping if you like. I can even hope with you.

Ben Widlanski said...

I am not "advocating" this case. I think that it was decided wrongly. You, however, seem to believe that because a tiny number of people believe the Supreme Court SHOULDN'T have jurisdiction over this case (and when I say a tiny number, I mean a TINY number), they DON'T have jurisdiction over this case. Its all fair and fun to argue metaphysical questions of constitutional jurisprudence, but when it comes down to the real world, you best start accepting the fact that no matter what you may believe, the Supreme Court is going to hear this case, and the Supreme Court is going to decide this case. Once you get to that point, you have three options. Option A is accept the Court's decision as correct. Option B is dispute the Court's decision as improperly decided. Option C is stick your head in the sand and scream really loudly that they don't have jurisdiction and shouldn't hear the case so it doesn't matter how they decided. I choose option B. You, apparently, have chosen option C. Just remember that there is a big difference between idealism and solipsism. Idealists hope for (and yes, work for) their perfect picture of tomorrow. Solipsists deny any world outlook other than their own in a crude attempt to bolster their own fragile intellectual utopias. Just make sure you stay on the side of idealism.

Let me say, once again, that I have no KNOWLEDGE that "local is better", merely have the BELIEF that it is so. There is quite a gulf between those two concepts.

Anonymous said...

I am going to clarify my position (not address the substance of your argument) so that we can conclude this discussion.

I am not delusional in any way and know exactly what is realistic/unrealistic. All I am always trying to say is that unless you strive for what is right, there is absolutely no way of ever getting there. Sure I can say that it's nice the supreme court might at some point want to protect private property, but I will also always say that it is still wrong to do so. Sure I can applaud if and when we get a tax cut, but I will also make sure to add that we shouldn't have something like the income tax in the first place. This to me seems like a pretty legitimate way of going about doing things (and I did say that I am completely in favor of the idea of protecting property rights). If an idea (like the supreme court not being allowed to rule here) does not enter the realm of discussion, there is no way to eventually achieve/address it.

Your gross mischaracterization that I seemingly live in my own little world, was completely unwarranted.

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Anonymous said...

Please clarify -
Case:Taking away of private property without just compensation is a violation of the fifth amendment by the state.
Result: Dismissed

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