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Friday, September 16, 2005

And You Thought Thomas Was a Conservative

I can't be the first to have noticed this, but I just read the Thomas dissent in Kelo again, and this struck me:

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

That's right.  According to Thomas, it is suspicious that something good for Pfizer would also be good for jobs, the tax base, and the local economy.
Wha?!  Isn't that the central tenet of free market capitalism?  Don't get me wrong: there's all kinds of problems with unrestrained free market capitalism.  But the idea that businesses create jobs is kind of, um, central to the whole thing.
Turns out that Thomas is something of a . . . socialist?  Who knew?

Posted by Hillel Levin on September 16, 2005 at 01:50 PM in Hillel Levin | Permalink

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Comments

Raul: I'm sort of curious. Under the prevailing mainstream "growth is good" ideology -- the ideology that cheers every increase in GDP even if there isn't an increase in efficiency of resource use to support it (i.e. "people are working harder to buy more, but they aren't working any better") -- why aren't broken windows a good thing for just that reason?

Posted by: Paul Gowder | Sep 19, 2005 10:52:12 AM

Oh, and if the Court got it wrong in Kelo, it is NOT because we doubt that Pfizer will actually create jobs in New London.

Posted by: Hillel Levin | Sep 19, 2005 9:15:05 AM

Dear Friends:

Perhaps unlike you, I give Thomas credit for saying what he means and meaning what he says. Contrary to many of my liberal friends (and apparently, not a few conservatives), I think Thomas is very articulate, and I've always enjoyed his one liners.

So yes, Thomas *could* have said "This looks like a land grab, and that's bad." He could have said "This is just like blazing saddles." But of course, that is not what he said, at least not the sentence that I quoted.

Here's what he in fact (as opposed to in your apologetic minds) said:

"This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'"

The only way to parse this little nugget is, I think, that it would be suspicious for something agreeable to Pfizer would also be likely to create new jobs and increase tax revenue.

That's got nothing to do with land grabs and the "original meaning" of the phrase "public use."

Posted by: Hillel Levin | Sep 19, 2005 9:14:09 AM

I really hope that this post was at least somewhat tongue-in-cheek because Thomas' comment in no way points toward socialist tendencies. As other commentators above have said, it is Thomas decrying the lunacy of calling a land-grab a "public use." If this post was serious I think it says a lot about how Professor Levin sees the world, or perhaps on how much "free market" literature (e.g., Hayek, Milton Friedman, Bastiat) he has read. I do not say that pejoratively, but as an observation on what a person's preconceptions are (to turn the tables, I might say something similar that a would puzzle a socialist).

As a “free-market thinker,” I believe land-grabs to corporations are not at all, and are no more good for jobs than broken windows are good for the economy because they keep window-repair men employed. Yet, when someone who does not approach the world with a free-market mindset considers such a land-grab they, it seems, see the situation as "pro-business" and therefore "free market" or "capitalist." Perhaps it is because they confuse "pro-(big)business" with property rights. The two are by no means the same, and all to often are opposed.

Again, I find Professor Levin’s reaction befuddling. Am I missing something?

Posted by: Raul Sanchez | Sep 17, 2005 12:46:31 AM

Holy crap, Simon, that's a brilliant metaphor.

Posted by: Mike | Sep 16, 2005 6:48:42 PM

Wha?! Isn't that the central tenet of free market capitalism?Aha, but the moment you introduce emminent domain and corrupt city governments, free markets go out of the window. In a free market, actors may freely obtain property and commodities of value. In a free market, the value of your property and commodities is whatever someone will pay for them. If Pfizer wanted to buy the land from Kelo, it was perfectly capapble of doing so - but it didn't want to pay Kelo's price, so instead, they played their "get out of jail free" card. If you've ever seen Blazing Saddles, you know all you need to know about Kelo v. New London: you send in the bad guys (played in this scenario by the city of New London) to drive out the residents and then snap up the land at far less than what you'd have had to pay otherwise.

Posted by: Simon | Sep 16, 2005 5:23:58 PM

According to Thomas, it is suspicious that something good for Pfizer would also be good for jobs, the tax base, and the local economy.
Wha?! Isn't that the central tenet of free market capitalism?

You might argue that the central tenant of free markets is that individuals, acting
in their own interest also create good for others (the central point of Adam Smith's baker
example). But no company, not even general motors, is essential for the economy. Government selecting companies to help, especially at the expense of other players in the market, is certainly not a tenet of free market capitalism.

Posted by: Adam | Sep 16, 2005 5:15:08 PM

It would be interesting to know more about Thomas's economic views.

Anyway, you can be a skeptic about some of the more exuberant apologiae for unregulated corporate capitalism without forfeiting the title of conservative. Many folks on the right adamantly oppose NAFTA and outsourcing, for example. Rod Dreher, formerly of National Review, is writing a book about American "crunchy conservatives" who are distressed at the Walmartization of their republic.

Burke would not have been a member of the Club for Growth. He decried the dawning age "of sophisters, economists and calculators" almost as passionately as he condemned Robespierre's "armed doctrine." For the Burkean, both free-market utilitarianism and Jacobin-style egalitarianism are corrosive agents that must be handled cautiously. Both tend to substitute abstract schemata for living, concrete institutions and relationships.

So Justice Thomas is well within the tradition of conservative intellectuals like Burke, Russell Kirk, and Richard Weaver when he writes:

So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes.

As a judge, Thomas is also indignant at the majority's use of mushy, manipulable concepts imported from economics to blur yet another line imposed by the constitutional text. In this respect, Kelo belongs with the profoundly wrong Wickard and Raich decisions, which use economics to dissolve the words of the Commerce Clause. All illustrate why legal conservatives should use the long spoon when supping with L&E types.

Posted by: Plainsman | Sep 16, 2005 3:41:03 PM

Paul: Don't hold your breath.

Mike: I think Thomas phrased it exactly as he meant. But I'm glad to see that there is at least one conservative capitalist still left--you.

Posted by: Hillel Levin | Sep 16, 2005 3:26:32 PM

Mike, True: us liberals tend to blindly obey whatever the evidence tells us! Conservatives are not so constrained. :-)

Posted by: Paul Gowder | Sep 16, 2005 3:18:29 PM

"It wouldn't be the first time a justice has gone from ... (b) independent thinker, and then (c) liberal."

Paul, I agree that liberals aren't independent thinkers.

Hillel, I think Thomas' (inartfully phrased point) was this: The city council's subjective purpose was not to further the city's best interest. Rather, they were catering to large corporate interests. I don't think there's a mens rea in the Takings Clause, though, so I'm not sure why intent would matter. Anyhow, at the end of the day, catering to corporate interests tends to be in the public interest, but that's a different discussion.

Posted by: Mike | Sep 16, 2005 3:12:01 PM

Hey, it gives me hope for the future!

It wouldn't be the first time a justice has gone from (a)slavish obedience to scarier conservative, through (b) independent thinker, and then (c) liberal. Blackmun part II would be nice...

Posted by: Paul Gowder | Sep 16, 2005 2:57:36 PM

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