Tuesday, July 05, 2005

More on Eminent Domain

John Tierney has a piece in the NYTimes today about the devastating effects caused by eminent domain abuse. He says to just look at Pittsburgh.

I've just copied and pasted the whole thing here:

Your Land Is My Land


PITTSBURGH — Two questions I'd like to ask candidates for Sandra Day O'Connor's job.

1. Does the Constitution forbid the government from seizing your home and giving it to someone else?

2. If you're not sure, would you be willing to tour Pittsburgh before taking this job?

Justice O'Connor had no problem with the first question. Noting that the Fifth Amendment allows property to be taken only for a "public use" like a road, she rejected arguments that it could be given to a developer just because the public could benefit from new jobs and tax revenues. By that logic, she argued in one of her last opinions, no one's home or business would be safe from anyone with a better use in mind for it.

But her side was outvoted, 5 to 4, by justices not inclined to be too literal about the Bill of Rights. They were pragmatists, arguing that land grabs like this had previously been allowed, which is quite right. And that's why I recommend a trip to my hometown to see the long-term effects.

Pittsburgh has been the great pioneer in eminent domain ever since its leaders razed 80 buildings in the 1950's near the riverfront park downtown. They replaced a bustling business district with Gateway Center, an array of bland corporate towers surrounded by the sort of empty plazas that are now considered hopelessly retrograde by urban planners trying to create street life.

At the time, though, the towers and plazas seemed wonderfully modern. Viewed from across the river, the new skyline was a panoramic advertisement for the Pittsburgh Renaissance, which became a national model and inspired Pittsburgh's leaders to go on finding better uses for private land, especially land occupied by blacks.

Bulldozers razed the Lower Hill District, the black neighborhood next to downtown that was famous for its jazz scene (and now famous mostly as a memory in August Wilson's plays). The city built a domed arena that was supposed to be part of a cultural "acropolis," but the rest of the project died. Today, having belatedly realized that downtown would benefit from people living nearby, the city is trying to entice them back to the Hill by building homes there.

In the 1960's, the bulldozers moved into East Liberty, until then the busiest shopping district outside downtown. Some of the leading businessmen there wanted to upgrade the neighborhood, so hundreds of small businesses and thousands of people were moved to make room for upscale apartment buildings, parking lots, housing projects, roads and a pedestrian mall.

I was working there in a drugstore whose owners cursed the project, and at first I thought they were just behind the times. But their worst fears were confirmed. The shopping district was destroyed. The drugstore closed, along with the department stores, movie theaters, office buildings and most other businesses.

You'd think a fiasco like that would have humbled Pittsburgh's planners, but they just went on. They kicked out a small company to give H. J. Heinz more room. Mayor Tom Murphy has attracted national attention for his grand designs - and fights - to replace thriving small businesses downtown and on the North Side with more upscale tenants.

The city managed to clear out shops and an office building to make room for a new Lazarus department store, built with $50 million in public funds, but Lazarus did not live up to its name. It has shut down and left a vacant building. Meanwhile, the city's finances are in ruins, and businesses and residents have been fleeing the high taxes required to pay off decades of urban renewal projects and corporate subsidies.

Yet the mayor still yearns for more acquisitions. He welcomed the Supreme Court decision, telling The Pittsburgh Post-Gazette that eminent domain "is a great equalizer when you're having a conversation with people." Well, that's one way to describe the power to take people's property.

But I think a future Supreme Court justice would have a different view of eminent domain after touring Pittsburgh's neighborhoods, especially those that escaped urban renewal: the old-fashioned business districts with crowded sidewalks and the newly gentrified neighborhoods with renovated homes and converted warehouses. The future justice would quickly see what sets the success stories apart from Gateway Center and East Liberty. No politicians ever seized those homes and businesses for a "better use."


Anonymous said...

So pleased am I to see someone post another article relating to the Kelo Decision so that I can respond with a link to an article (by someone more "official" than a lowly blogger like myself) that repeats something I argued a number of posts ago.


Casey said...

What about protection of constitutional and individual rights?


Here's a good quote:

Between Reconstruction and the New Deal, as the states began legislating a variety of new “progressive” regulations, it was judges acting in the name of private property and “liberty of contract” that “usurped” the power of the people, “invented” new rights, and gave birth to judicial activism as we know it today.

Then there is this quote, from the 14th ammendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It seems to me (had the court ruled in the CORRECT manner) that this is an issue for the US Supreme Court...

Anonymous said...

You somewhat answer your own question when you say "protection of constitutional and individual rights." Those constitutional rights are not to be infringed upon by the Federal Government (since the Constitution is applicable to the Federal Government).

One should never trust federal judges in rulings just because they temporarily (and superficially) help the cause of freedom (such as the supreme court ruling that property rights should be protected, for instance). In fact the very idea of federal judges applying rulings to States is actually going against the cause of freedom, though the ruling itself might protect something like property rights. All it takes is a future supreme court to change its mind. This is precisely why the Founders constructed a system that divides Federal and State authority. Yes it is true that the State governments might enact un-property right-friendly legislation, but it is far easier to change that than it is to petition congress or the supreme court to do so.

Your use of the 14th amendment is merely citation of something enacted after the march towards blurring the federal/state division had already begun. In that case, you could have also cited the Kelo decision as an example of how the supreme court has authority here. My point is that the Federal government had no jurisdiction here, at least according to the system set up for this country. Read the wording of the first amendment (the first few words specifically) and you see who/what the Bill of Rights addresses).

Reading important documents of the founding era, shows overwhelmingly that the the Constitution and Bill of Rights apply to the Federal Government and Federal Government only. It is the job of the people of each state to make sure that those they elect are property-right-friendly.

Anonymous said...

Go to law school...

Anonymous said...

You don't need law school to buy yourself some books to read about what the Constitution means. If that is what you hinted at with your comment, it is pretty pathetic and says a lot.

In fact, it is precisely this attitude in America (teachers/professors know everything) that is helping lead to its decline.

If I want to learn about economics I should go to my Keynesian professor, right? If I want to learn about Federalism I should go to Professor Richard Pious who will tell me that the Federalist Papers say the branches of government are actually merged together rather than separate (I heard it with my own ears while sitting in his class, and could not believe the fact that nobody raised their hand to ask what he was smoking). The list goes on.

Unfortunately, success in life means paying thousands of dollars to get an education which simply requires you to regurgitate the garbage you have been fed so that you can tell your employer where you graduated from to get a high paying job. This is exactly what I do and what I plan on doing. However, I make sure to educate myself with real facts at the same time (by reading on my own, gasp) so that I don't grow up lying to myself and others.

You obviously don't need law school. What you need is a long break from school to read some things that your law professors have probably never heard of.

marco said...

You should check out Penn and Teller's show Bullshit! - they just had a show on college. It was pretty funny.

Prometheus said...

Your use of the 14th amendment is merely citation of something enacted after the march towards blurring the federal/state division had already begun. In that case, you could have also cited the Kelo decision as an example of how the supreme court has authority here. My point is that the Federal government had no jurisdiction here, at least according to the system set up for this country. Read the wording of the first amendment (the first few words specifically) and you see who/what the Bill of Rights addresses).

The 14th Amendment was duly enacted in accordance with the laws set out in the Constitution. Whether you like it or not, We the People decided that black people and other minorities should be recognized as citizens in every state. If you want to call for repealing the 14th Amendment in order to "unblur" the federal/state distinction, that's your business and I'll call you what you are - nuts. The 14th Amendment and the 5th Amendment were both duly enacted in accordance with the processes set forth in the Constitution, but five justices decided that they were so damn smart that they had revealed knowledge of the "true" text. The Supreme Court had every right to hear the case (if we're to be a "nation of laws and not of men" and if the 14th Amendment counts as much as the 5th Amendment - I didn't know order mattered, but maybe you possess some revealed knowledge of your own, Anonymous), and they got it dead wrong.

Anonymous said...

Nothing makes me happier than reading responses intended to sound intelligent while showing nothing that backs their claims (except for statements that "this is how it is so it must be right").

Unfortunately, history is not on your side. Reading founding documents, and learning about what prominent "politicians" at the time thought/wrote, will show you that the Bill of Rights was intended to apply to the Federal Government only. In fact, this provision is exactly what convinced some people to allow its passage because EVERYONE was fearful of what regulations might be put on the States.

You can claim otherwise, you can point to the current situation which obviously supports your view (I was not arguing that), and you can continue to bury your head in the sand. However, that will not enhance your knowledge of history in any way.

Casey said...

So when IS it ok for the federal government to rule in regards to state government?

Anonymous said...

The Constitution does not actually permit the Federal Government to overrule decisions made by State governments. What is permitted, is for the Federal Government to go ahead exercising the tasks that it can according to what the Constitution explicitly says (after all, if it can do things that aren't explicit, then why have a Constitution?). Meaning, it can collect taxes (such as a sales tax, but not an income tax since the 16th amendment was never actually properly ratified nor did the Founders ever think a government could directly discriminate against citizens based on income. But that is a separate story). So, it basically means that the Federal Government does have a relationship with the citizens of the States (like in all the things Article I Section 8 says), but it cannot actually tell the State "we don't like your legislation on X so change it."

Inevitably, someone will ask what happens if a State chooses not to abide by those few requirements that the Federal Government has on the citizens. The State then has the option to secede. But it also obviously gives up the protection from invasion that the Federal Government guarantees. In fact, that is another heavily overlooked historical fact. It was well understood long ago that since the States voluntarily join together to form the Union, they may also secede if they choose to do so. That is why the War of Northern Agression had far less to do with slavery, and far more to do with a tyrannical North trying to impose its views on Southern States that took it as a huge footstep on their pride (the issue of tariffs was extremely important, for instance). Few if any nowadays will argue that something like slavery was a good thing, however the States themselves are the only place where changes could/should have been made. Keep in mind that many countries at that time were able to abolish slavery without a war of any kind.

The Federal Government for the most part is supposed to play a very "international" role. It should collect minimal taxes to provide for defense, and it should send ambassadors here and there to have communication with other countries. But other than that, the Federal Government has little to no role. It is the State governments that decide everything else (echoed in the 9th and 10th amendments). They decide what practices are permissible or forbidden (that includes abortion, unions...).

Before one gasps at what horrific legislation a State might enact, one should keep in mind three things. The first is that if the citizens in the State have elected leaders that represent their "horrific" views, then it is really a problem that you have with someone else's legislation rather than their having a problem with their own. And second, it is much easier to change State legislation than Federal legislation so the possibility of you informing others of your views and having them change State laws in your favor, is actually enhanced. And finally, this is exactly the system the Founding Fathers wanted because it allowed people with similar beliefs to live in a common State with common laws.

The Federal Government would then largely stay on the perimeter protecting these individual States from invasion and allowing them to live how they choose to.

One thing is for sure: nobody ever imagined the mammoth entity we now call the Federal Government.

Anonymous said...

I just want to reiterate that my goal here isn't to bury my own head in the sand and claim that what I state is actually the way things are run now. I am well aware that they are not. I am only arguing how they were supposed to run originally, and how this is the best method. I always say that when someone wants to debate the merit of an idea, it is perfectly fine, but when someone claims that their idea has historical support (like the Constitution says we should separate church from state, or the Constitution gives the government more than the enumerated powers) I have a problem with it.

Casey said...

From Article VI of the Constitution:

"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

I think the right to property might just be one of those Constitutional rights, don't you?

Anonymous said...

In the sense that the Constitution does not give the FEDERAL GOVERNMENT power to take property, then absolutely. But what I'm trying to tell you, is that that private property right, is restricting the Federal Government, not the States (and it restricts it by not giving any branch of government the power to take property in the Constitution. That is why the Constitution is a document that permits the government to do few things, and forbids it from doing EVERYTHING else). Rarely does someone misquote the Constitution; What usually happens, is that someone assumes what the Constitution says applies to the States (such as in your use of Article IV). And it does not.

By the way, that line about "supreme law of the land" has often been taken to mean that the Constitution applies to the States. However, it is the supreme law of the land concerning those things that the Constitution addresses. I am at a loss in saying this because a person could reply "then why didn't the Founders add the phrase 'concerning those things that the Constitution addresses.'" All that I can reply, is that this was well understood at the time and could not have been taken as anything else given the circumstances.

Should a State wish to remain under the Constitution, it must permit the Federal Government to do those few things the Constitution states.

The reason each State has a Constitution, is because the State is governed by its own Constitution and its own laws. The fact that there exists a "big" Constitution just means that a more outside government is also limited by its own document. There is no assumption here that the "bigger" (federal) government controls the States. Nor is there any assumption that the "big" Constitution applies to anything but the Federal Government.

The Founders wanted a division of powers and for the most power to reside as locally as possible. This is mostly possible under the system I have been describing.

I want to point out that we both cleary agree how important property rights are. I am simply arguing that the Constitution limits the Federal Government in this respect, and the State Constitutions limit their States in whatever manner those Constitutions state. The reason I continue to make this distinction despite the fact that I agree with so many people on the importance of property rights, is that accomplishing laws favorable to freedom through unconstitutional means, is actually self-defeating. It leads to centralization of power in the long run.

Think about prohibition. It got passed the first time around. Then people complained enough to have an amendment reversing the decision. If I were around at the time, I would ask "what the hell does this have to do with the Federal Government regardless of where you sit on the issue." The same applies to this (at least for me).

Casey said...

The 4th Amendment says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This means that private property cannot be seized (unreasonably). Period. In other words, NO ONE--not the federal government, not a state government, not a local government, not a neighbor, etc.--can seize a person's property (again, it says "unreasonably;" i think we can all agree that the "reason" new london seized the property is not "reasonable"...regardless, that is not the issue in this argument).

So, the Supreme Court CAN intervene here. The amendment is written in the passive voice, meaning that the subject--the person taking the property--can be ANYONE or ANYTHING. The state, therefore, has been prohibited to unreasonably seize a person's property. Thus, the issue does belong in front of the Supreme Court to deem whether or not New London's decision was "reasonable."

I know, I know. The 10th Amendment. However, unreasonable seizure of property IS forbidden to the states by the 4th Amendment. Therefore, your point about the states being able to legislate as they please on all of those things not forbidden to them in the Constitution (as long as they uphold a "republican" government [Article IV]), while true, is moot

Anonymous said...

I'm chuckling to myself. I don't know how much more I can say. If you understand the time period we are discussing, and have read what prominent Americans thought/wrote at the time, you would know that the Bill of Rights only applies to the Federal Government.

Quoting to me the 4th amendment does not change anything because it, like the other amendments, applies to the Federal Government.

You are falling into the same trap that liberals these days fall into when they read "general welfare" in the Constitution. Sure, if you don't put anything into context, you can basically come up with lots of meanings for what is written. But I am telling you as a factual point (not even as a matter of opinion) that the Bill of Rights and everything else in the Constitution for that matter, was never meant to apply to the States.

Think about this: Each State had a constitution. That means each state existed with its own constitution. When the idea for a Federal Government came around, a new document needed to be drawn up for this Federal Government. If the "big" Constitution applies to the States as well, then State constitutions were/are not necessary. Yet they exist. And state legislators and representatives at the time looked on those State constitutions very strongly.

There probably is nothing more for me to say. You need to read up more on the time period, and realize that (as I sort of stated a few lines up) you can't just make your point by reading the Constitution out of context (think of my "general welfare" example). That is why the Federalist Papers were written, and that is why good historians have kept a solid history of the American Republic.

Anonymous said...

Oh yea. I remember I once posted an article about this topic before (maybe on the Republicans blog) and one Adam Scavone replied that he agreed (if I remember correctly). If you know him (as I am assuming you are both libertarians since you both post on this blog) maybe he can do a better job of explaining than I can!

Casey said...

I don't think I'm quoting the 4th Amendment out of context at all. The difference between the "general welfare" point you bring up and my use of the 4th amendment is simple. I agree with you that the "general welfare" clause has been misinterpreted, over-interpreted, etc. The problem is that the very words "general welfare" are not clear, and thus the government has run away with it. In my citing the 4th amendment, I have made no interpretation in any way whatsoever. No one gets to take your property unreasonably--no interpretation necessary. So, if someone takes your property, and you deem it unreasonable, you can bring them to court and rightly end up in the Supreme Court.

And as to your final comment, I'd be happy to hear what Adam has to say about it if you can find the link because I don't appreciate how condescending you are. If you dislike liberals so much, why are you taking on their elitist attitude?

Anonymous said...

I was not intending to be condescending so I apologize if I came off that way...

I don't know where the link is but I'm sure if you ask Adam he will know what you are talking about.

Casey said...

No worries :)

but i do want to know how i am interpreting the 4th amendment out of context, seeing as i have not interpreted the amendment at all...

Anonymous said...

The only way in which you are interpreting it out of context, is in what entity you are applying its words to (that was probably terrible grammar). I am not disputing with you what it says (obviously, I'm sure we both can read), I am just saying that your correct reading of it is meant to apply to the Federal Government for the reasons I listed before (self-functioning State constitutions exist, the Federal Constitution being created to create the Federal government, political sentiment/belief at the time...).

By the way, I found the article I think Adam read:


And here is a more brief article by former Libertarian Presidential candidate, Harry Browne (he addresses the topic we are specifically talking about somewhere in the middle):