Enormous Defeat for Property Rights
Today, the Supreme Court ruled 5-4 in the Kelo Decision that local officials can seize nearly anyone's private property and hand it over to their favorite developer:
The Supreme Court on Thursday ruled that
local governments may seize people's homes and businesses -- even
against their will -- for private economic dvelopment.It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of development and property ownership
rights.The 5-4 ruling represented a defeat for some Connecticut
residents whose homes are slated for destruction to make room for an
office complex. They argued that cities have no right to take their
land except for projects with a clear public use, such as roads or
schools, or to revitalize blighted areas.As a result, cities
have wide power to bulldoze residences for projects such as shopping
malls and hotel complexes to generate tax revenue.
This is a really, really bad decision. Most of my thoughts on this subject are here. The Economist, quoted in that post, framed the issue well:
Put simply, cities cannot take someone's house just because they think
they can make better use of it. Otherwise, argues Scott Bullock, Mrs
Kelo's lawyer, you end up destroying private property rights
altogether. For if the sole yardstick is economic benefit, any house
can be replaced at any time by a business or shop (because they usually
produce more tax revenues). Moreover, if city governments can seize
private property by claiming a public benefit which they themselves
determine, where do they stop? If they decide it is in the public
interest to encourage locally-owned shops, what would prevent them
compulsorily closing megastores, or vice versa? This is central
planning.
Sandra O'Connor echoed these thoughts in her dissent, and made the obvious point: This is not about condemning land for the public good. This, in effect, will be about condemning land for the benefit of those with the most political pull:
Justice Sandra Day O'Connor, who has been a key swing vote on many
cases before the court, issued a stinging dissent. She argued that
cities should not have unlimited authority to uproot families, even if
they are provided compensation, simply to accommodate wealthy
developers...."Any
property may now be taken for the benefit of another private party, but
the fallout from this decision will not be random," O'Connor wrote.
"The beneficiaries are likely to be those citizens with
disproportionate influence and power in the political process,
including large corporations and development firms."
While Bush, sometimes rightly, gets bashed by the Left for trying to create a corporate state, it is in fact the left side of the Supreme Court that has struck the strongest blow now in that direction. This decision in a stroke gives local authorities nearly unlimited ability to engage in Soviet-style planning of their local economy.
Find much more at SCOTUSblog here and here.
Update: Professor Bainbridge feels my pain. Glenn Reynolds has updates here and here. Reason's Hit and Run opines:
the majority opinion says, quoting an earlier decision, the "Court
long ago rejected any literal requirement that condemned property be
put into use for the ... public." Which is to say, they've rejected the
notion that "public use" means anything more stringent than:
"legislators want to do this." The Court's view is that any "public
purpose" will do, and such purposes apparently include increased tax
revenue. The straightforward implication is that any taking of
a private residence to hand it over to a business, or just from a poor
person to a wealthy person, will be a taking in service of a public
purpose: As a general rule, the rich pay more taxes than the poor, and
businesses pay more taxes than households.
Arguing with Signposts has a huge roundup here. And I would love to all get behind this idea from Right Thinking:
Here's a thought: How about the GOP-controlled Congress puts the flag
desecration amendment on the back burner and gets to work on an
amendment limiting the power of the state to seize private property
from citizens?
The Left seems split on the decision. Half are thrilled by the subjugation of property rights to government whim, while the other half are appalled that "public use" has come to be defined as maximizing property values. It is a strange place we are in when we have lefties like Kos actively supporting a decision that allows government to take land from citizens so long as a wealthier resident replaces a poorer resident on the land, or so long as a commercial enterprise replaces a non-commercial one.
UPDATE: Strata-Sphere has a roundup of some of the wacky things that local governments are doing with their newly-confirmed Kelo powers.
honestpartisan:
A big critique of the Warren Court by conservatives was that judges were legislating from the bench, overturning democratically-enacted statutes like those criminalizing abortion and birth control. Although I'm pro-choice, I find these arguments persuasive and I think that Roe v. Wade was wrongly decided.
Are you saying that an unelected, appointed federal court should have more authority than an elected local government to determine was does and does not constitute a public use? If so, do you also think that the criticism of the Warren Court by people like Robert Bork was wrong? If not, how do you reconcile the two?
June 23, 2005, 10:24 amScott:
But don't ever forget, liberals or leaners like Kennedy, Souter, Ginsberg, Breyer, and Stevens are for the individual, for the little man. A load of hogwash. Hypocrites.
June 23, 2005, 10:35 amEric's Grumbles Before The Grave:
More Reactions to Kelo
A round up of the reactions to Kelo v. New London, today's Supreme Court decision that dramatically extended the powers of government and shredded the 5th Amendment. My own response and my earlier post on the value of Originalism. Brad...
June 23, 2005, 12:16 pmEric's Grumbles Before The Grave:
More Reactions to Kelo
A round up of the reactions to Kelo v. New London, today's Supreme Court decision that dramatically extended the powers of government and shredded the 5th Amendment. My own response and my earlier post on the value of Originalism. Brad...
June 23, 2005, 12:16 pmEric's Grumbles Before The Grave:
More Reactions to Kelo
A round up of the reactions to Kelo v. New London, today's Supreme Court decision that dramatically extended the powers of government and shredded the 5th Amendment. My own response and my earlier post on the value of Originalism. Brad...
June 23, 2005, 12:16 pmAccidental Verbosity:
Bad Precedent
Another thought I had about the Kelo decision is that they seem to be going by precedent. Think about it: Do you go back to the Constitution and use that as the supreme arbiter, or do you go primarily with precedent, even if it's wrong? This is...
June 23, 2005, 12:21 pmBridgetB:
The local elected government should not have the power to decide any such thing at all. City Councils should be expected to respect property rights. The "use" is irrelevant! Nothing should trump rights, not even "federalism." Goodgod!
June 23, 2005, 2:11 pmskink:
Where is Janice Rodgers Brown when we need her? Kiss your hard earned property goodbye thanks to the communist...er...liberal justices who perpetrated this debacle on the American public.
June 23, 2005, 2:15 pmFred:
The Warren court started this ball rolling by ruling that local governments could take blighted areas and reform them. Over time, blighted has come to mean not generating as much tax revenue as another use of the property. I never thought the purpose oif my life was to maximize tax revenue, but then that's just me.
Our "unelected, appointed court" is one check on government doing anything they want without regard to law.
Government serves the people, not the other way around. The courts are one way to make that relationship work. The supreme court failed us all this time.
June 23, 2005, 3:02 pmScott:
Re: Kos, c'mon Coyote get with the program. The only working-class people who matter are those who vote Dem.
June 23, 2005, 5:34 pmArizona Watch:
Kelo v New London (aka, Robin Hood)
Today, Jeremy Bentham is dancing in hell.
Bentham, who spawned the vile moral philosophy of Utilitarianism (that which is good and right brings the greatest happiness to the greatest number of people), must surely have experienced posthumous joy as ...
June 23, 2005, 9:44 pmdearieme:
In the late 80s we had a huge property bubble in Britain, as you and we have now. When house prices collapsed, people fell into "negative equity" i.e. they owed more on the house than the house was worth. Lots ended up penniless or bankrupt, BUT if they managed to cope until prices picked up again, they were OK. Now suppose that some local government comes along and seizes your house when you are in "negative equity" - it compensates you only for the depressed value of your house and you are left in a pitiable financial condition. When the US housing bubble bursts the scope for tragedies is endless.
June 24, 2005, 4:25 amMaxedOutMama:
This may end in communism, or it may end in oligarchy - but whatever it may end up as, the US is surely no longer a democratic state.
And btw, the court's recommended solution of passing state laws to limit such seizures doesn't affect the federal government, which is governed by the Supreme Court's interpretation, which means exactly nothing. Given the scope of Congress' power under Gonzales V Raich, there is now nothing to restrain Congress from deciding that its federal tax revenues would be greatly enhanced if the US had more rich people in it, confiscating the property of the poor to sell to rich immigrants.
This is backdoor Communism.
June 24, 2005, 6:30 amThe Tweezer's Edge:
Little Pink Ponies
Yesterday, the U.S. Supreme Court ruled 5-4 in Kelo vs. New London that local governments may seize people's homes and businesses for private development, declaring that it was a "public use" within the scope of the 5th Amendment of the...
June 24, 2005, 7:18 amThe Tweezer's Edge:
Little Pink Ponies
Yesterday, the U.S. Supreme Court ruled 5-4 in Kelo vs. New London that local governments may seize people's homes and businesses for private development, declaring that it was a "public use" within the scope of the 5th Amendment of the...
June 24, 2005, 7:18 amThe Tweezer's Edge:
Little Pink Ponies
Yesterday, the U.S. Supreme Court ruled 5-4 in Kelo vs. New London that local governments may seize people's homes and businesses for private development, declaring that it was a "public use" within the scope of the 5th Amendment of the...
June 24, 2005, 7:18 amGlen:
Not backdoor communism, a ruling such as this is more Facist. As I understand it, this maintains much of the idea of private property except maybe the most important one, actual control. This ruling along with recent actions by both congress and the White House have me thinking about this phrase from the Declaration of Independence:
'...certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.'
I don't believe the fifth ammendment applies here, at least not as far as original intent which would make it only apply to the federal government. Later ammendments might make it apply, though. Of course, what really matters is that the government CAN do this, not whether the action is legal or lawful, we've denied ourselves any redress when the government acts unlawfully or even breaks its own legislation.
Any way, I learned when working as a policy wonk for our government decide what policy you want, figure out why the public should support it, write an economic justification for it (if you can't, make one up, kind of like the Emporers New Clothes) and then spray it with legal perfume (if you can't, just hirer creative lawyers).
June 24, 2005, 10:40 ambob todd:
By the time I finished the comments, I think I realize the court was ruling on what it considers a states right issue. If a political subdivision of a state condemns land for economic development, it seems the federal court is washing its hands of trying to decide whether or not the taking is justified. That's a lot different than endorsing such takings. It seems to be saying we need to raise a little hell on the local level instead of counting on the federal court to split every hair. If they washed their hands, that means a lowly city court can put a stop to this kind of stuff.
June 24, 2005, 6:54 pmEconbrowser:
A supreme mistake
Count me among those disgusted with the Supreme Court's ruling against Susette Kelo, which
June 24, 2005, 10:25 pmasserted the right of the government to seize her home in order to divert the property to what
it judged to be a use of higher economic value.
Econbrowser:
A supreme mistake
Count me among those disgusted with the Supreme Court's ruling against Susette Kelo, which
June 24, 2005, 10:27 pmasserted the right of the government to seize her home in order to divert the property to what
it judged to be a use of higher economic value.
No Oil for Pacifists:
The Road Not Taken
Unrestricted eminent domain would be unconstitutional. But Kelo demands no such thing. It's pro-Federalist, and bolsters a bit of judicial deference commonly confined to the legal endangered species list. I refuse to assume the sky is falling.
June 25, 2005, 8:12 pmScott Lawton:
It's great to see all the attention this issue is getting. The next step: 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.
June 25, 2005, 11:39 pmJack Benway:
Bob Todd is correct. As was mentioned here and on Arizona Watch, the Fifth Ammendment (extended to the States via the 14th Ammendment) Takers Clause already lost its teeth with a Warren Court decision when "public use" became "public good." We need to remind our legislators and judges at the local and state level that such use of eminent domain is not okay with us. This battle isn't over, it's just moved closer to home.
June 26, 2005, 10:00 pmRolf Harrison:
This ruling could be the tipping point, or "Last Straw" to cause the property "bubble" to implode. What now is a property worth, in light of this new world of Government Taking on a virtual whim? Sure, it takes some evidence of a Greater Revenue Good to the local Government, but that is only a bogus study away. Now, they can condem and take any real-estate from you, so why put any improvments into it, or buy it at all, if it can go away any time, whether you want to sell or not? Property values must plunge to reflect this new reality. And can anyone doubt that backs-will-be-scratched, by any an all interested partys with some cash to slosh around to "get things done"? I predict massive corruption to rival Enron, Worldcom, etc.
June 28, 2005, 10:58 pmThis is the worst thing the Supremes have done to our "free" nation in my lifetime. RH
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