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Tuesday, June 28, 2005

Democracy in action

Yesterday, I argued that Kelo was fully consistent with precedent and democratic majoritarianism--a two-fer for the committed conservative.  I also suggested that those offended by the decision should move to pass a law at the local, state, and/or federal level.

It turns out that Congress is listening!  According to Lyle at scotusblog

Sen. John Cornyn, a Texas Republican, moved swiftly on Monday to narrow the effects of the Supreme Court’s decision last Thursday that upheld broad government power to seize private property to turn over for profit-making economic development. Cornyn’s new bill, S. 1313, would lay down a congressional definition of “public use,” far narrower than the Court’s constitutional interpretation in Kelo v. City of New London (04-108).

The bill's relevant text:

“( a ) In General. – The power of eminent domain shall be available only for public use.
“( b ) Public Use. – In this Act, the term ‘public use’ shall not be construed to include economic development.
“( c ) Application. -- This Act shall apply to –
(1) all exercises of eminent domain power by the Federal Government, and
(2) all exercises of eminent domain power by State and local government through the use of Federal funds.”

As a policy matter, this may or may not be a good idea--I make no claims.  But it is democracy in action, and it is precisely the kind of conversation we want between the branches of government.

Hat tips: Scotusblog and Will Baude (in the comments section to my earlier post).

Posted by Hillel Levin on June 28, 2005 at 09:42 AM in Law and Politics | Permalink


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You know, I'm not sure that "everyone in the community understands they can be taken from" is a sufficient basis to consider a law fair or non-direct. What if everyone in the commmunity understandood is that the legislature could, in effect, pass a bill of attainder against them? Surely that's still to be considered an injustice upon the people who actually get bills of attainder...

That's the difference between takings and all other laws: the final legislative act is targeted against one person. There's a choice moment. In ordinary laws, there's no direct public choice. Sure, if you cheat on your taxes, the IRS "chooses" to prosecute you or not, but the choice isn't ordinarily conceived as a political/legislative/community choice, and it isn't ordinarily conceived as a choice that could go either way: the default is to prosecute you. By contrast, in a taking, the legislature must and does affirmatively make a decision in total freedom and in its capacity as legislature and direct manifestation of the will of the community to choose a particular member of that community, who has done nothing wrong, to apply this allegedly impartial law to.

How is this different from a bill of attainder? And why are bills of attainder wrong? Sure, there's the whole due process/extrajudicial punishment/Congress gone mad kind of issue, but I think there's also a moral sense there.

Of course, I may be proving too much: I may be proving that all takings are wrong. Still, I may not need to be afraid of taking that position. After all, heaven knows there's a bunch of stuff that we nonetheless need to function as a society, but that is wrong, that we can excuse on grounds of necessity if and only if it's really really necessary. However, "really, really necessary" is a pretty good surrogate for "public use..."

Sure, there's a moral debate about flat taxes versus graduated taxes for just that reason, and I honor that moral debate, even as I take the position that graduated rates are eminently just. But even if you agree with the critique of graduated taxes, at least they're imposed on classes of individuals, rather than individual people.

Similarly, zoning laws are determined on the basis of policy as to the section of a city at issue, not some scheme to grab or injure a particular person's property. Indeed, if your local city council passed a bill saying "Hillel Levin's house, and only Hillel Levin's house, is now zoned for concentrated animal feeding operations and slaughterhouses ONLY" I think that you'd have a substantive due process claim at the very least.

What I object to on ethical grounds is the combination of this extraordinary individual act: the state pointing a finger directly at you, personally and individually, alone against the world, when you haven't done anything to offend the norms of the state; and the concentration of power on the other side -- it's not just the "representative" democracy that you have a voice in that wants your land for its uses, it's a combination of the representative democracy and a powerful private interest that you don't have a voice in, tbut that has a disproportinate influence on the political process (we have to call corruption when we see it); and the fact that the benefits of this action, while arguably inuring to the whole community, PRIMARILY inure to the benefit of one person, and the very same person who corrupted the legislature into doing it.

Targeting of individual + corruption + primary benefits going to someone other than the community = wrong.

Posted by: Paul Gowder | Jun 30, 2005 8:29:00 AM

Shoot, contrary to most discussions, this one just gets more and more interesting. I think the fundamental disagreement between us is whether allowing such takings is should be conceived as a direct attack on those being taken from. You obviously think so. But I don't. So long as the everyone in the community understands that--theoretically at least--they can be taken from, it is an across-the-board law. That's sufficient for me.

I also reject your assessment of taxes. *Of course* taxes aren't assessed equally. Some people pay more taxes than others, both in real terms and in terms of the rate. You might argue that this is moraly acceptable, but again you'd be begging the question--because lots of people think that only a flat tax is moral (for the reason that you explained, in fact).

The closest parallel that I can think of to the takings situation is the zoning case. I buy a house knowing full well that it could be re-zoned--and that if so, my property value may fluctuate, I may not be able to build the second story addition (or the gas station) that I wanted to, and so forth. Rezoning will affect some people's property, but not everyone's. In my view, that's still acceptable. Basically, it is an opt-in community, and I've chosen to live here, knowing that's the law.

The only distinction I can come up with is that in the takings case you lose the whole damn house, and in the zoning case you just lose certain uses. But that doesn't seem to be a very salient distinction. After all, at least in the takings case I get compensated (and yes, I want a premium that is mandated at the federal level--not variable among states)!

Posted by: Hillel Levin | Jun 30, 2005 7:47:58 AM

Hillel: I don't really have time to give your points the full discussion they deserve, alas, so I'll have to limit my reply brief to a few snippets of thought. On (1), (3), and (4), I think your premium proposal makes sense, but doesn't hurt my overall point, viz. "economic development takings as presently constituted suck rocks" and "the feds can and should legislate to stop it." The feds could and should impose the premium structure. If you argue that the premium structure, too, should be subject to local variance, then it loses its force as a viable alternative thus counterargument to my points (1), (3), and (4).

On (2), which is where the really interesting argument could be had, I think it comes down to a philosophical issue. We can think about it in Kantian terms, for example (or maybe Habermasian terms, but I'm not going there -- I do have to sleep sometime tonight!). Most times, when the majority imposes its will on the minority, it does so either (a) fairly, or (b) based on some act by the members of the minority that can be morally condemned. In other words, (a) taxes are applied across the board in a system that we've decided is just for all, including the persons taxed, which is all people. In neither cases is it most people taxing some people, it's everyone taxing everyone. It comports with the principle of universalization. With regard to criminal sanctions, that is also universal, in that the burden is inflicted on all. It's also at least arguably compatible with the categorical imperative in the means/ends formulation. At least some part of the reason we punish is because of the moral culpability of the actor, and to aid the actor in conforming his/her conduct to appropriate norms: we're treating them as ends, rather than means. (Dan, please don't jump on me here, I know I'm totally simplifying these issues all out of existence and ignoring stuff like restitution, deterrence, etc. etc.)

By contrast, when we take Peter's property to pay Paul, it's something that we're ONLY doing to Peter, nobody else, and PRIMARILY benefiting Paul. It's not universal, and it uses Peter entirely as a means to serve the end of the majority (and of Paul).

It's unethical, at least for Kantians (or existentialist quasi-Kantians like me) in a way that is different in kind from the ordinary kind of law that the majority enacts over the will of the minority.

And I would not object to a sur-reply, should you wish to produce one :-)

Posted by: Paul Gowder | Jun 30, 2005 12:24:38 AM


Hah! Loved that last comment!

Posted by: Hillel Levin | Jun 29, 2005 5:26:54 PM

Incidentally, as an addenda to 3, above, I should add that such a standard would be far-reaching. If the takings clause can be read to mean that as long as the taking can, by some means, be connected to an eventual-but-abstracted public use (in this case, the increased taxes the city believes will stem from the taking will have a public use, even if the taking itself does not), why couldn't that same line of reasoning allow other provisions to be similarly read?

For example, take the commerce clause. In the modern world, what activity is there that does not, in some eventual-but-abstracted manner, impact on interstate commerce and one's ability to participate therein? The eventual-but-abstract relationship test you suggest would turn the commerce clause into a blank cheque thorugh which Congress could excercise the plenary powers which it was so deliberately and clearly denied by the Constitution.

Fortunately the Supreme Court would invalidate any such attempt as ultra vires. Oh - wait...


Posted by: Simon | Jun 29, 2005 5:24:18 PM

I am going to request from the court one more opportunity to reply, despite what I said earlier, since you responded to my garage argument.

The question is not whether the Town is in the parking business or the Pfizer headquartering business. The question is whether the Town is in the business of raising revenue in order to provide the taxpayers with decent schools, clean streets, fire departments, police services, town greens, libraries, and so forth. That can be done through a parking garage, if it is built properly; or it can be done through Pfizer headquartering.

If you want to make the distinction between "legitimate town activies" (garages) and "illegitimate" (Pfizer headquarters), then let me throw a harder question out there for you. What if the Town wants to raise revenue by building a museum that out-of-towners will pay to use? And what if, instead of building it itself, the town conveys the land to a private developer? Or what if the Town wants to raise money by holding the biggest damned town fair in the state--featuring the largest pigs, pumpkins, and potato pies by far? And what if the town contracts it out to a developer? The line you've created is not only fuzzy; it is non-existent.

Indeed, even if you insist on making the "legitimate Town business" distinction -- which looks myopically at the specific development rather than the development purpose and effect -- I still think you are wrong. After all, it is a legitimate Town purpose to attract businesses. Towns very much are in the legitimate business of headquartering Pfizer. Of course, towns don't build the thing themselves; instead, they come up with all kinds of incentives: selling their own land cheaply; tax abatement; good community amenities to attract employees; and yes, condemnation of land.

To sum up my points here:

1. You are focusing too myopically on what the Town interest is when you make your distinction. The real interest is "raising revenue," not "headquartering pfizer";

2. Even if there is something to your distinction in this little case (pfizer vs. garage), there really is no workable distinction among the universe of things a Town may do (museums, town fairs, hotels vs. pfizer); and

3. Even if you make a distinction between garages and pfizer on the basis of the legitimacy of the town activity, attracting pfizer is a legitimate town activity. If it weren't, towns would have much larger problems than Thomas's view of the Takings clause.

Now I rest.

Posted by: Hillel Levin | Jun 29, 2005 5:17:13 PM

In my view, in order for Kelo to validly reach the result which it does, the court would need to demonstrate that a) the language of the takings clause is not sufficiently clear in and of itself, and b) as a consequence, there was a widespread, longstanding tradition in which the takings clause had indeed allowed the taking of private property by government, only for its grant to private entities. Cf. Rutan, 497 U.S. 62 at 95 (see also, ibid. at n1).

Because I do not accept proposition a), it logically follows that, even if proposition b) were shown to be accurate (something which I don't think is adequately shown, in any instance, in the Stevens opinion), the plain meaning of the text, in its original understanding, must control the outcome of a case.

Even if, for sake of argument, we set aside the previous notes, it still becomes hard to envisage which circumstances would not constitute a public use under the standard you propose. The rationale you offer has a slightly topsy-turvy feel to it: it has the feeling that you determined what would be a fair, reasonable, good answer to the problem presented, and having reached that determination, now you're looking for ways in which the 5th amendment can be bent, hammered and contorted into a shape which doesn't preclude that determination (q.v. Rossum, The Textualist Jurisprudence of Justice Scalia). I.e., "what could the 5th Amendment say?", rather than "what does the 5th Amendment say?". Apropos, you conclude that although the taking itself is not for public use, the second-degree earnings from that taking may be put to public use.

Well, that makes all the difference! "I am persuaded, therefore, that the [New London] procedure is virtually constitutional. Since it is not, however, actually constitutional" (see 497 U.S. 836 at 870), a ruling which upholds it is wrongly decided.

Posted by: Simon | Jun 29, 2005 5:14:18 PM


I am going to make one last attempt, and then the floor is yours. After that, we will agree to disagree.

The biggest error you make is in your defense of point (2). Your point simply begs the question. Anytime the majority overrules the minority (to raise taxes, to make something criminal, to elect a president, to create zoning laws), someone can claim that this is the tyranny of the majority. It certainly is the RULE of the majority, and surely the outvoted minority will frequently feel tyranized (to coin a term). But it doesn't make it so. You need to do more than simply claim that any taking of land for private development that is meant to benefit the majority is necessarily "tyranny." Perhaps you accept it on fait. But that isn't good enough because, I think, reasonable people can differ. What is inherently wrong with people setting up a system that allows such transfers? So long as it does not single people out on the basis of party affiliation, race, religion, unpopular views, or through general corruption, it really seems to me to be a reasonable arrangement within a local community.

Indeed, I think that citing to Rawls helps me out here. If we adopt the veil of ignorance--we don't know whose house will be taken or when--we might STILL agree on this policy.

What I am saying is that your defense of point (2) creates a tautology: "The federal government must pass a law preventing this behavior because the behavior is bad." Why is the behavior bad? "Because the behavior is bad." What *makes* it bad?

As for points (1) and (4), you simply rely on arguments rather than evidence. There may be all kinds of plausible reasons that *this* land is the land that Pfizer needs. The most obvious is that all of the land around it is owned my Pfizer, and so the house you are willing to sell 3 blocks away does Pfizer no good. As for whether it ought to be given at market price, your argument here is with someone else. I've already proposed a law requiring premiums to be paid above FMV in such takings cases!

As for point (3), once again: if we are pricing people out of their own neighborhoods, then just pay them MORE. Hence, a premium.

To the extent you are standing firm on your argument that this kind of taking should be made illegal by the feds, you still need to explain why the developer building the parking garage is any worse than the town doing so itself. In other words, what is it about the conveyance to the developer that makes this any worse than if New London wanted to build this kind of development itself? Do we just have more trust in local governments than in developers? (In Connecticut, at least, such trust in the government might be misplaced given the number of government officials who have recently been indicted and the general public mismanagement of many towns. Indeed, there's ample reason to believe that developers are the best able to . . . develop stuff successfully.)

One more thing: I think I would vote for a law making this kind of taking illegal. Indeed, I think lots of people--majorities--in lots of places would. The question is whether it must be done at the federal level. For me, the answer is no. I can simply see too many scenarios in which non-corrupt communities could allow them for reasonable reasons. And so long as everyone gets a vote, and so long as the rules are clear, I've got no problem with that.

I rest on my briefs and look forward to your reply.

Posted by: Hillel Levin | Jun 29, 2005 4:59:55 PM

oh, I almost forgot:

(a) I never said the line was totally bright. I think the private-parking-garage thing is a little dubious, but at least it's for a service that the government should be providing. Hence on balance it's ok. On the other hand, there's no reason the government should be in the Pfizer-headquartering biz, so giving away land for that purpose would be corrupt.

I mean, really, we know the difference between robbing peter to pay paul and a public service. We know corrupt government giveaway when we see it, just like the other kinds of obscenity.

(b) Why not? If the government isn't planning on using it, why shouldn't they at least give the original owner a right of first refusal on getting it back? It seems minimally fair, doesn't it?

Posted by: Paul Gowder | Jun 29, 2005 4:44:36 PM


(1) I'll defend. I have some basic economic ideas on my side: as a place becomes poorer, people have an incentive to leave. Also, places become poorer as land becomes disused, because use of land is one of the major things that generates wealth. Your point about the suitability of land is, I think, also economically questionable. Pfizer can't be placed next to the school because "economic development" of that sort creates externalities, including the kind of externality that we don't want going onto the schoolyard and molesting/selling drugs to/getting in the drinking water of schoolchildren. Pfizer ought to be made to internalize the cost of that externality by paying more for land that is further away from the school. It ought not to be given to them for the same "market" price (indeed, the further-away-from-the-school, but already owned, land would probably be cheaper in a condemnation proceeding to the extent land values rise with proximity to schools). Otherwise, we encourage inefficient behavior, behavior that couldn't last on the private market, like building polluting factories below their real cost.

(2) -- c.f. "tryanny of the majority," Rawls, etc. etc. etc. etc. "plaintiff incorporates by reference the entire literature on majorities screwing individuals with less political power."

(3) Agreed, but the point is that the injustice increases to the extent that we have a gentrification aspect, pricing people out of their own neighborhoods.

(4) cf. 1.

Posted by: Paul Gowder | Jun 29, 2005 4:39:48 PM


Under the circumstances that I described--and that you accepted--I think there is a strong argument that this is a public use. The property is being condemned under eminent domain in order that the *public* can have good schools; in order that the *public* can have effective policing; in order that the *public* can have clean streets; in order that the *public* can live in a city that isn't falling apart all around them.

I understand your point: "Public use" must mean actual use by the public. But it isn't obvious to me that this is the only reasonable interpretation of "public use." I don't claim to be an expert on the history surrounding the founding, but if it were all that clear that the framers intended--and everyone understood--that the Takings clause prevented any takings that were not actually for use by the public, I think you'd have a stronger case. But it simply isn't that clear.

And are you really hung up by the fact that not every member of the "public" will be able to physically "use" the taken property? Even if the public very much "uses" the fruits of the property?

Posted by: Hillel Levin | Jun 29, 2005 4:25:33 PM

Hillel - I agree, to a certain extent, with these comments:We are all offended by the notion that the state can take my property and give it to you just because you'll build a bigger -- and thus more revenue generating -- house. But what if we live in a truly blighted Town? What if our schools are failing because there isn't enough money to keep them afloat? What if public services are almost non-existent? What if the lack of public revenue has led to rampant crime and public corruption? And what if the only way that we can think of to improve the situation is to make the area attractive for a developer with a good plan to improve our tax revenue? And what if the only way to do that is to offer the developer my land? Isn't it just possible that these circumstances will outweigh whatever offense we generally take with the specter of such land grabs?That seems a very reasonable, sensible approach. If we lived in England, where judicial discretion is very much more expansive, more conducive to such reasonable analysis, that would be a good summary of the situation, and a fair, reasonable remedy. And even in America, for that reason, absent the 5th amendment.

But we do not live in England, and the Supreme Court cannot void the 5th Amendment. It does seem true to my mind, as surely it would to the mind of any fair, reasonable and impartial observer, that "these circumstances will outweigh whatever offense we generally take with the specter of such land grabs". But they do not outweigh the 5th Amendment limitation on the power of emminent domain, which says explicitly that land may be taken only for public use.

Posted by: Simon | Jun 29, 2005 4:15:47 PM

Paul, I think your four numbered arguments are mistaken, and here's why:

Argument (1) assumes facts not in evidence. Not only are they not in evidence, I think they are flatly false. You may not know this, but there are lots and lots of depressed towns throughout the country. Think about formerly industrial zones in the northeast and middle america; think of towns that relied on army bases that have since closed up. People here too want reasonably good schools for their children; they want reasonably clean streets. As for people not sticking around, that's partly the point: when people leave, the tax base is reduced even further, because as houses sell for less and less, taxes must be reassessed. Even assuming (as you suggest) that there is plenty of vacant land for the developers to use, haven't you considered that not just any old home will do? It has to be in the right place. The land has to be appropriate--and there has to be enough of it. And it won't do to build the Pfizer plant right in the middle of the residential neighborhood, next door to the school.

I agree with your claim in arugment (2), but that's simply descriptive; it isn't normative. I accept your position that some people's sentimental attachments can't be truly compensated--because they are incompensable. The normative question is whether there are some cases in which the needs of the particular community outweigh the sentimental attachments of a few individuals. I think they may. And at the very least, I think it is up to the community to decide. And community members must decide with absolute knowledge that their houses may be next.

Argument (3) is really just a rehash of the "just compensation" question. And I agree that we can turn attention to it. But it doesn't follow that NO level compensation is just under the circumstances.

As for (4), refer to what I said with respect to (1): not all land is suitable. It has to have certain qualities. In lots of cases, one desirable quality will be that the land in question lies near the highway; or away from higher population density; or next to land already owned by the developer; or next to land owned by the Town that the Town is willing to sell to the developer.

But the biggest beef I have is this: Your arguments prove too much. (a) We agree that the Takings Clause allows a state government to condemn your land in order to build--by itself--a parking garage (proceeds from the parking garage to enhance the Town coffers and also to support parking at town properties). Right? Then why shouldn't it be legal for a Town to condemn the land for a developer to do precisely the same thing? The idea being that the developer has a better idea of how to build and manage parking garages than the mayor does?

(b) What if the Town condemns your land, planning to build a new road. But then the Town decides that the new road is unnecessary, impossible, or too expensive. Does it have to sell you your land back?

In other words, the lines here are impossible to police through broad absolutist rules handed down from the great mount. The people who should police the lines are the people who are most likely to be affected. The locals. With, of course, some guidelines ensuring a degree of fairness and equal treatment.

Posted by: Hillel Levin | Jun 29, 2005 3:18:53 PM

Hillel: I was thinking more along the lines of Tuskegee than Mengele, although I refrained from making that particular comparison because it would just confirm any suspicions that any reader has of my insanity, or at least extreme irritability at corporate welfare! :-)

Of course local governments should be permitted to make laws and otherwise run matters matters in their local communities for just the reasons you mention. However, when there is a clear and clearly correct policy that should not vary from community to community at issue, I think it's self-defeating madness to insist that the federal government demurely step aside and let the states muddle through it.

And I think barring takings for the purpose of giving the property to a private business is one of those national policies. I reject the notion that there are local communities who are so economically depressed that the only thing to do is to condemn private homes for corporations to move in. I reject this notion for several reasons:

1) If a community is that poor, there will ordinarily be plenty of vacant land. Many people don't stick around in poor communities, the poorest communities are often either rural or decayed industrial areas full of disused steel factories/mines/whatever. The exception, of course, is in the inner cities, but may I assume that we don't want to permit governments to only evict the poor black folks from their homes and turn the neighborhoods into industrial parks?

2) If, for some reason, the people in such communities don't want to sell their homes, it's presumably because they have some sentimental value that won't be captured by the economic value.

3) If they are forced to sell their homes, then some factory comes in and "develops" the community, causing land values to rise, they really get gypped: they can't even obtain an equivalent home.

4) Assuming away the holdout problem, why can't the developer find alternate land with people willing to sell in this community? After all, it's poor, it's full of crime: maybe they'll have to pay a premium for the sentimental value over the depressed land values, but isn't that just the free market at work? (As for the holdout problem, perhaps we could permit e.d. takings solely against people who were demonstrably demanding obscene prices as holdouts.)

Posted by: Paul Gowder | Jun 29, 2005 2:57:29 PM


I think you are misunderstanding what it means to "experiment" on matters of public policy. It is not quite so nefarious as you make it out to be. (Indeed, from the way you tell it, it is no different from Nazi scientists experimenting on pregnant Jewish women.)

For many social issues, there are various different policy proposals, each with its own strengths and weaknesses. Violent crime, drugs, teenage pregnancy, public education, sexually transmitted diseases, racial disparities, and pretty much anything else you can imagine--there's more than one way to address these issues.

And you can imagine that the proper way to address the issues are sometimes dependent on the nature and qualities of the location in which they are found. They will depend on the extent of the problem (crime in state X may differ greatly, in nature and scope, from crime in state Y), the nature of the population (are there shared expectations, are there wide disparities in culture and class, etc?), and so forth.

And sometimes, reasonable people may simply disagree on the proper solutions and policies. Sometimes different solutions work in different states; and sometimes one proposed solution proves to be a failure. But it is not sinister or evil to allow for different approaches, within a range of acceptable approaches, of course. This is what is meant by "experimenting." The only other option you offer is to adopt wholesale untested policies that may not work at all or that may not be appropriate for the location.

In the takings context, think about it like this. We are all offended by the notion that the state can take my property and give it to you just because you'll build a bigger -- and thus more revenue generating -- house. But what if we live in a truly blighted Town? What if our schools are failing because there isn't enough money to keep them afloat? What if public services are almost non-existent? What if the lack of public revenue has led to rampant crime and public corruption? And what if the only way that we can think of to improve the situation is to make the area attractive for a developer with a good plan to improve our tax revenue? And what if the only way to do that is to offer the developer my land? Isn't it just possible that these circumstances will outweigh whatever offense we generally take with the specter of such land grabs?

In other words, it may well be appropriate for takings like this to happen in some cases. And the best judges for that are the locals. Does it open the door to some prospect of corruption? I suppose so. But then we should try to address the possibility of corruption (which I simply don't see in the Kelo case) without unduly limiting local government from addressing the unique needs of its population.

Now, I have no problem with a federal law that restricts use of federal funds for such takings. If the Town has a problem like this, it is reasonable to require it to address the problem with its own money. And I have no problem with a federal law requiring some additional protection (with some kind of premium above FMV) for the subject of a taking. But it is reasonable that in some circumstances, a taking like this is appropriate.

Of course, this paean to local government should not be taken too far. There are instances -- many instances -- when local government is bad government, and unacceptable government. But there are just as many cases when federal government is bad and unacceptable to you and me.

In this particular case, I can see why local governments should retain some power. In other words, this doesn't strike me as a case where the federal government necessarily improves matters by taking an absolutist stance.

Posted by: Hillel Levin | Jun 29, 2005 2:31:31 PM

Eh Nonymous: the thing is, there's something fundamentally immoral about a justification for a division of powers that involves experimenting on the public. "We'll let this kind of law get passed without the checks of the federal system, because, hey, it'll only screw ten or eleven million folks, and we learn from their misfortune!"

As for 3 strikes, I think we have to ask what the goal is, and how any goal beyond oppression could possibly be served. If the goal is to reduce crime by simple incapacitation (holding criminals in prison), then either (a) it's not making any difference, or (b) it is making a difference by substantially increasing the prison population and associated costs. These numbers (admittedly from a biased source) seem to suggest that it is indeed swelling prison size.

If the goal is to create a permanent underclass in poor (black) communities, I think it's working smashingly.

Posted by: Paul Gowder | Jun 29, 2005 2:08:54 PM

Paul: I liked your little rant on California.

Prop 187 is, as I bother to look at it, indeed a stupid idea. I was a bit young then to understand, and wasn't in Cali.

However, here's my question: Has 3 Strikes failed? I mean, has it been tried and found wanting (as opposed to, in the famous words of mumble-tee-mumph about Christianity, Found difficult and not tried)?

If so... wouldn't California know about it? Wouldn't the legislators, the judges, for goodness' sake the prison administrators? Even given that the prison industry, the cop industry, and the incarceration industry have a lot of pull, if it's not cost-effective to do 3 strikes, people would figure it out. If the result of immobilizing both the career criminals and the unlucky punks and the totally unjustifiably held VCR-stealers is to swell prison size... expect 3 strikes to go away.

Even better, as we see mandatory minimums shrinking among the states nationwide, expect people to learn from trends, and from recent history, and from experiments.

California's loss is our gain; we know how stupid it would be to adopt their laws, when the laws have bad results.

California's gain is also our gain; we know that clamping down hard on marijuana trafficking while allowing _and heavily regulating_ some medical marijuana use will, in fact, destroy the fabric of society as we know it. Oops, I mean, have no effect whatsoever on commerce. You know what I mean.

Posted by: Eh Nonymous | Jun 29, 2005 12:24:29 PM

I'm not sure how much dispute there can be over the meaning of "public use" where using the power of emminent domain to "take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation" as Stevens puts it. That's what's so astonishing about this case - the fact that Stevens actually articulates, in as many words, the correct answer - before dismissing it and taking his own flight of fancy to justify his conclusion that it would be a good idea for New London to be able to engage in this kind of economic development. And who knows, maybe it is a good idea - but that doesn't make the abuse of emminent domain to "take the property of A for the sole purpose of transferring it to another private party B" any more constitutional.

Is employment a public use? Is it a public service? Or is it a commercial activity? What limit would Kelo place on the excercise of emminent domain, which shows why Thomas is wrong to say that "if such 'economic development' takings are for a 'public use', any taking is, and the Court has erased the Public Use Clause from our Constitution"?

Posted by: Simon | Jun 29, 2005 9:32:20 AM


The difference is in the statute's definition of "public use." You might be arguing that the Supreme Court misinterpreted "public use" in the Constitution, but you need to do better than just cite Scalia and Thomas. As others have pointed out, for around a century Scalia's interpretation has not been accepted. There is a live dispute here. It therefore makes complete sense for congress to lay it out straight.

Posted by: Hillel Levin | Jun 28, 2005 7:55:21 PM

It seems preposterous that we have reached a stage where the Congress of the United States feels itself required to pass a law which substantively says nothing which is not already in the Constitution, for no reason other than the inability of the Supreme Court to read the text which they have sworn to uphold. The Cornyn bill says "The power of eminent domain shall be available only for public use"; the 5th Amendment says "nor shall private property be taken for public use without just compensation". Spot the difference!

I can't help but hark back to Justice Scalia's warning of over a decade ago, in County of Riverside v. McLaughlin, 500 U.S. 44 (1991) at 60-61:The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done." I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not)."That the modern supreme court has essentially liberated itself from the shackles of the text is hardly news; that they feel able to so brazenly abrogate an explicit constitutional protection is a little newer, and a little scarier. I have to confess that, in my copy of the Constitution, I do not see any mention of the Supreme Court in Article V, nor any mention of the power to amend the Constitution in Article III. Perhaps Justice Stevens would be good enough to make available his version to the world.

Kelo goes wrong four sentences into III, where, having come painfully close to grasping the point - "it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation" - it then rejects this as a basis for deciding the case. This is as close as Stevens' opinion gets to the Constitution, and thereafter, it never again reconnects with text, tradition, or common sense, even, for that matter.

Having dismally failed to demonstrate that handing the land to a private developer is a public use, Stevens suggests an alternative test: "The disposition of this case therefore turns on the question whether the City’s development plan serves a public purpose". In my view, he does not convincingly prove that private employment is a public purpose, either. How is a Pfizer research facility a "public purpose"? Is creating jobs a public service, rather than an economic activity? On the other hand, this is at least consistent with Stevens' previously-expressed view of what employment is; cf. PGA Tour v. Martin, 532 U.S. 661 (2001) (Scalia, J., dissenting from per curiam by Stevens, J.) at I 9.: "By the Court's reasoning, a business exists not only to sell goods and services to the public, but to provide the "privilege" of employment to the public; wherefore it follows, like night the day, that everyone who seeks a job is a customer" (emphasis added).

The fundamental problem with Kelo, the reason above all else that it is wrongly-decided, is that it is in open collision with the 5th Amendment, and no amount of stare decisis - even if we allow, for sake of argument, that adherence thereto would mandate the result embodied in Stevens' opinion - can ever change that. Respect for precedent cannot justify an unconstitutional result, and in a case where only either stare decisis or the text of the constitution can be sustained, it is the latter which must prevail. Such is the case here. The 5th Amendment says that state governments can take your property for public use; Kelo effectively says that state governments can take your private property for any use. Or, as Justice Thomas put it, "If such 'economic development' takings are for a 'public use', any taking is, and the Court has erased the Public Use Clause from our Constitution" (dissent of Thomas, J.) (emphasis added). These two propositions cannot both survive; there either is, or there is not, a formal limitation in the 5th Amendment on what the government can do with land under its emminent domain power (q.v. Kelo, dissent of O'Connor, J., at II 1-2). Justice Stevens says there is not. The Constitution says otherwise, and the Constitution's answer is always right.

Posted by: Simon | Jun 28, 2005 6:06:57 PM

oh, and one more thing about "state's rights" -- that whole policy laboratory thing, the idea that states can try out policies before they're applied nationally, is a bit of a crock. The whole reason we have a government of limited powers is so that we can't have little petty tyrants experimenting on the public. Whenever I hear the "lab argument" for state's rights, I think of California's record:

Prop 13: destroyed schools
Prop 187: raped immigrants, eventually struck down
3-strikes: filled the prisons
Energy deregulation: Sunk the state's economy, gave big windfalls to Enron, put the Governator into office.

Medical weed: but struck down.

State's rights aren't looking too good...

Posted by: Paul Gowder | Jun 28, 2005 4:44:05 PM

"Business of the federal government" is a meaningless normative concept. The business of the federal government is those things which the constitution clearly says is its business. (Which the actions of national corporations doing business in every state and headquartered elsewhere, baseball teams in national leagues and with cross-state ownership, etc. unquestionably fall into.) Unless federal regulation as opposed to state regulation has some evil associated with it -- which I don't believe I've ever heard a coherent argument for except some kind of amorphous "state's rights" concept that is not followed up with reasons beyond "Jefferson liked it" -- it should regulate to the extent of its powers consistent with sound policy.

Why not the federal government? What difference does it make? I think the advantage of federal regulation is clear: Banning private crony-giveaways in the name of "economic development" is a sound anticorruption measure. It's unquestionably good policy. So whoever happens to be on hand to stop it should. It's more efficient for the feds to just do so in one bill than to waste our time passing 50 bills. We don't want the states going off and making bad policy.

We know takings to serve private interests are bad. If the states disagree, they're wrong. Why give them the opportunity?

Posted by: Paul Gowder | Jun 28, 2005 4:13:39 PM


Just because something is bad ("handouts to corporations") doesn't make it the business of the federal government. If the good people of Connecticut believe that the only way to keep their economy afloat is to give businesses special incentives to locate there, then so be it--even at the expense of individual people (so long, of course, as the individuals are not targeted as a result of some group affiliation or the like). And if the people of Connecticut are incensed--as you are--then they will outlaw it. Put differently, why is this something that the federal government is uniquely well-situated to address?

I say this even recognizing that this very well may be an issue of interstate commerce. After all, if Pfizer didn't locate to CT, perhaps it would have gone to NY. But the Constitution only *permits* the federal government to legislate those things that relate to interstate commerce; it does not *require* the federal government to take a stand on each and every issue that matters to you.

(I hope I am not coming across as hostile to the anti-takings folks. As I said, I may well agree that the Kelo decision makes for bad policy, even as it is both predictable and (I think) correct. And I am not automatically opposed to federal legislation. I'm just wondering why it is necessary.)

Posted by: Hillel Levin | Jun 28, 2005 1:03:44 PM

I take it that the reason doesn't go broader is that Senator Cornyn has a rather strict view of his own constitutional authority. Although given the way these things are I suppose some later group that believed in both property and nationalism might try to expand the thing.

Posted by: Will Baude | Jun 28, 2005 10:59:01 AM

Why is it the biz of the feds? 'Cause this really is commerce... it's governments giving handouts to large business interests.

Posted by: Paul Gowder | Jun 28, 2005 10:33:24 AM

More states use federal funds for development purposes than you probably think.

As for broadening the measure, it is possible that interstate commerce would be a sufficient hook. But why not allow the majorities in Indiana and Ohio make their own decisions about this kind of thing? Let them pass their own laws. Why is this the business of the federal government any more than Terri Schiavo or Mass. same-sex marriage (if you are a liberal), abortion or anti-sodomy laws (if you are a conservative), or medical marijuana (if you are anyone)?

Posted by: Hillel Levin | Jun 28, 2005 10:22:36 AM

Y'all think they could go broader? "[A]ll exercises of eminent domain power by State and local government through the use of Federal funds" doesn't necessarily capture many local condemnations at all. BUT: if the justification for these condemnations is "economic development," doesn't this necessarily impact interstate commerce?

Posted by: Paul Gowder | Jun 28, 2005 9:47:47 AM

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