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Thursday, September 15, 2005

Getting Kelo Wrong

From this week's Time Magazine:

Bucking a U.S. Supreme Court ruling on eminent domain that curtailed private-property rights, the Texas legislature passed a bill in August that would restrict government seizures of private land (thus joining several states in a backlash against the ruling). But two exemptions made it into the bill, one involving the Cowboys' construction plans for a new $650 million stadium. About 50 property owners are refusing to sell their homes to the city of Arlington, blocking the Cowboys' bid to build the stadium on their land. If the bill becomes law, those homeowners may be forced to leave, suggesting that the property-rights movement is alive and well in Texas--so long as football revenues aren't at stake.

Two comments.

First, this blurb presents a perfect example of how the mainstream media misrepresents important legal issues.  A legislative decision to prevent Kelo-type takings does not buck the Supreme Court.  Indeed, just the opposite: it takes the Court's invitation to legislate according to the will of the people.  Kelo obviously did not require federal, state, or local governments to allow such takings; but that's the impression that is created by this and other stories in the wake of Kelo.  (Not unlike the prevailing belief that if Roe is overturned, abortions become illegal.)

Second, if the Cowboys get a special dispensation, you have to wonder how much people really care about Kelo.

Posted by Hillel Levin on September 15, 2005 at 10:25 AM in Hillel Levin | Permalink


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I do think that is the strongest defense of Kelo. As with all debates one deals with it by explaining 1, that one is unconcvinced, and 2, why.

As a prefatory note I will note that it is intriguing that so far as I can tell no Justice of the Supreme Court Ever has written that the public use clause is literally non-normative, rather than very broad, or a constitutional question committed to the legislature. This may not be worth very much, but is at least worth noting that the Public-Use-is-non-normative language doesn't seem to be on the table.

Then I think one invokes the Marshall canon that words of the constitution are presumed to have meaning. If the Public Use clause is non-empty, I think the normative interpretation is the most likely one.

I do think the competing account, which suggests that actually it was substantive due process or natural that was supposed by the court to prevent naked land transfers, with public use as empty or descriptive language, has something going for it, although the fact that no Supreme Court jurist has ever put it forward makes me nervous, and so I would like more evidence before signing up for the program.

Posted by: Will Baude | Sep 16, 2005 6:33:09 PM

You know, the best argument against Kelo may actually be that if Paul and I agree on something, then its self-evident truth must be manifest. ;)

I actually agree with everything Paul just wrote, although, I rather fancy we would prefer to interpret both the P&I clause and the ninth amendment in rather different ways, having rescued them from said dust heap.

Posted by: Simon | Sep 16, 2005 1:39:01 PM

Kami: the result of any such debate should be clear. Most of our more egregious constitutional errors seem to come from assuming that some constitutional provision was just put in by the writers as some kind of fancy rhetorical flourish, or perhaps decoration, or because otherwise there'd be too much white-space on the page and they wouldn't get a bulk rate with the printers. The framers of the constitution were not, to my knowledge, paid by the word.

It would be a shame to add the public use clause to the dust heap of the other ignored provisions of the constitution: the privileges and immunities clause, the limited times clause, the 9th amendment (on some accounts), etc. etc.

Posted by: Paul Gowder | Sep 16, 2005 12:52:11 PM


How do you deal with the fact that it's very much open for debate as to whether the public use clause is meant to have any normative component?

Posted by: Kaimi | Sep 16, 2005 12:25:50 PM

Simon, that's just it. Hillel gets annoyed when we hijack his popular-reactions-to-Kelo posts by discussing the merits of the case, but as I have had amply repeated, I happen to think there is a popularly-enacted federal public use clause already, and that it constitutes binding law on all branches of the federal and state governments, erroneous unconstitutional pronouncements by 5 Justices notwithstanding, so I think you'd still have to repeal it. You can't just ignore it because others do.

Posted by: Will Baude | Sep 15, 2005 11:53:18 PM

D'oh, sorry for the double posting above. I realized -- too late, evidently -- that I had been a muppet and declared Will's comment to be in a tense that it actually wasn't written in, and corrected in the second post.

Posted by: Simon | Sep 15, 2005 8:10:05 PM

I would have relatively litle objection to repealing the federal "public use" clause and allowing different states to set their own levels of constitutional protection.Why place that statement in the future tense? For all practical purposes, the Supreme Court has already done precisely this.

Posted by: Simon | Sep 15, 2005 8:08:00 PM

I would have relatively litle objection to repealing the federal "public use" clause and allowing different states to set their own levels of constitutional protection.Why place that statement in the imperfect tense? The Supreme Court has already done precisely this.

Posted by: Simon | Sep 15, 2005 8:07:04 PM

Ah, apologies for the assorted misunderstandings and miscommunications.

I meant "global" in the mathematical rather than the physical sense-- that is, legislation that covers the subject of eminent domain in broad swathes rather than special cases, not with any particular reference to jurisdiction. My imprecision.

Re: Constitutional change in Connecticut, my understanding from what is admittedly a naive reading of Conn. Const. Art. VI was that 75% majority of the legislature plus a majority of the voting citizenry could amend the constitution without any need for a "constitutional convention". Am I profoundly ignorant on some relevant point of Connecticut Constitutional Amendment law?

I plead guilty to charges of elitism with respect to both the New London and Cowboys developments. But I really am unaware of any serious study by anybody other than the NLDC that is any better than agnostic on the merits of the Fort Trumbull development.

Posted by: Will Baude | Sep 15, 2005 6:05:55 PM

Well, excuse me if I choose not to take your word regarding the Kelo taking over that of the vast majority of people who actually live there. Not that I'm necessarily convinced by them either. But your notion that "everyone who really knows anything is against it" smacks of the very elitism that liberals--and particularly "activist" judges--are so often accused of. It turns out that elitism is good--so long as the elites agree with you.

You spoke earlier of "global legislation." You'll have to forgive me if I took you at your word and assumed you meant federal constitutional legislation, since last I checked, that's the closest thing to "global" we have in this country.

As for state legislation, I'm all in favor of states doing whatever they want on this question. As for my state (Connecticut), I would like to see a higher bar on private developer takings; but not one so high that it would require a state constitutional convention to undo it.

With respect to the Cowboys, not knowing anything about the condition of the city and relevant neighborhoods and the value the stadium is supposed to add to the community, I remain agnostic. Dubious, but agnostic.

Posted by: Hillel Levin | Sep 15, 2005 5:22:31 PM

I don't know of anybody who has looked closely at the New London taking itself and suggested that it is affirmatively a good idea, other than the NLDC. And if anybody has, I can say after some study that they are quite wrong.

I agree that different states seem to want different policies, so I would have relatively litle objection to repealing the federal "public use" clause and allowing different states to set their own levels of constitutional protection. But I affirmatively think they ought to set high levels of protection, because the compensation project is unreliable and underenforced (a problem that is helped but not solved by a perse percentage increase: given the role of bargaining, exactions, preemptive devaluing landuse regulation, punitive regulatory takings, litigation costs and negotiation, I think that a rule-like increase in compensation will be circumvented on the ground. I hope that I am wrong, and would be happy to see increased-compensation legislation enacted, but let us not hitch our cart to that horse without some further evidence.)

Re supermajorities, I too propose allowing state supermajorities on a case-by-case basis to authorize public use takings. It would take this form-- a constitutional amendment that said, "unless this amendment is amended by the requisite state supermajorities, eminent domain may not be used solely for the purpose of economic development.... (etc.)". If a state supermajority wanted to authorize a state or local majority to proceed, they could. I tend to think that because of corruption and capture problems we oughtn't let *local* (non-state) supermajorities do the same thing.

Incidentally, the Cowboy takin is also not a "good thing" by any civilized metric of utility.

Posted by: Will Baude | Sep 15, 2005 5:13:48 PM

Never did I suggest you want to get rid of all of eminent domain. My point is that sometimes economic development is worthwhile, and might even trump what I think of as relatively important homeowner rights. Indeed, I don't think that what governments frequently do with eminent domain is necessarily more baby-like (i.e. good) than what we might generally call "economic development." (Indeed, I'm now enjoying watching conservatives argue that when big bad corporations take your property it is bad; but when the fuzzy wuzzy government does it, it is good.)

Maybe the Kelo taking is actually a really important and good thing overall. Maybe the Cowboy taking too. I don't really know. But if it is, I don't want to overrule it. So I'd like to come up with some other way to make it more likely that the good takings get taken (whether by the government or anyone else); but not the bad ones.

I've offered two options: increasing the price for developers (which makes it more costly to them and the state, thus making them think longer and harder about it, and also salvages something for the takees); or requiring a local or state supermajority on a case-by-case basis (which seems to make a lot more sense in this case than requiring a supermajority country-wide). The bottom line is that homeowners in New Hampshire care more about their property rights than homeowners in other states with different traditions; and their local needs are likely far different too. Why not allow them to decide for themselves and let people vote with their votes and with their feet?

Posted by: Hillel Levin | Sep 15, 2005 5:02:55 PM

Absolutism is relative.

To my knowledge not IJ, no the Texas activists, not I, have suggested that we ought to absolutely eliminate the power of eminent domain. Like Richard Epstein, I tend to think there is a place for forced compensated transfer, even in the hands of local governments. The suggestion is that takings for so-called economic development, or takings in which the public does not own and cannot use the land that is taken are categories that are so likely to be bad that we can usefully throw them out while preserving the majority of the good. This is draining the bathwater but leaving the baby, at least most of the time.

Requiring a supermajority is another, similar, option. (A constitutional amendment is just a different form of a supermajority requirement, albeit one with different social valences and structural implications, depending on which constitution is being amended.) I happen to think it is an inferior option but it would be better than what we have now. Which isn't saying much.

Posted by: Will Baude | Sep 15, 2005 4:16:53 PM

Like I said, watching conservatives argue that majorities are bad and legislatures worse is quite fun.

Further, maybe the point is this: Some private takings are good, and some are bad. Even if the good ones are few and far between, why would we want to throw the baby out with the bathwater? Perhaps the Kelo taking will revitalize a community that clearly needs revitalizing; maybe the Cowboys taking too. Why not come up with some way to try to weed out the bad from the good? You clearly aren't satisfied with simple majoritarianism--which we tolerate in virtually every other area, even though we both know that majorities and legislatures regularly come up with horrible and corrupt rules.

But it is not clear to me that the alternative you offer--absolutism--is either better or even necessary. There certainly are other ways to weed out good from bad: require super-majorities; change the incentives on developers, municipalities, and individuals.

Posted by: Hillel Levin | Sep 15, 2005 3:55:12 PM

Humans-- and more importantly, political coalitions composed of elected humans-- are weak.

The same group of people can pass the First Amendment and the sedition act, proving the need for the aforesaid amendment. This doesn't mean that the principle of free speech isn't important, just that we understand the weaknesses of our own ruling coalitions.

Posted by: Will Baude | Sep 15, 2005 3:47:20 PM

Hypocrisy is worse in general, for it involves dishonesty. But if you convince yourself into thinking that the principles you would apply to everyone else do not apply to you, I'd aver that there's some insincerity with respect to your principles as well.

I do, however, enjoy the delicious irony of watching political and legal conservatives declare that the masses are not to be trusted.

Posted by: Hillel Levin | Sep 15, 2005 3:42:33 PM


The point is that we usually hold these principles dear because we are afraid of what other people will do if left unchecked. We tend to trust ourselves.

This is even more true when the rule is admittedly prophylactic, like the Kelo-response legislation. We might agree that not all of these takings are "necessarily evil", but the question is whether we trust elected majorities to determine which is which. If not, we might want to both restrict the ability of future majorities while simultaneously avoiding the restrictions ourselves.

This is hypocrisy, not insincerity.

Posted by: Will Baude | Sep 15, 2005 3:35:55 PM


If you think your case is so special that it undermines a principle you supposedly hold dear, I have to question how deep your commitment actually is.

Further, since (as I've explained at length in the past) I don't see all of these kinds of takings as necessarily evil (i.e. there are circumstances when I believe they might be justified), I would not want to see absolutist global legislation. I would not mind global legislation that gives further protections to property owners (either by extracting higher sums from such takers or by requiring such takings to be ratified by more than a mere majority from the relevant locality, or something else entirely). But I do not support absolute prohibitions in this area. (And, once again, this has nothing to do with what the Takings Clause means in the abstract. Even if the Court declared an absolutist rule in Kelo, I would disagree with it.)

Posted by: Hillel Levin | Sep 15, 2005 3:18:49 PM

That anti-eminent-domain legislation contains an exception doesn't prove that people don't care about Kelo. It just establishes why global legislation is necessary; there is always the temptation to make an exception to constitutional rights for our own special case.

Posted by: Will Baude | Sep 15, 2005 2:59:13 PM

Whatever you think of the merits of Kelo, when the Supreme Court declares that a state MAY do something, it does not follow that state MUST do that thing.Oh, I entirely agree. It's lovely to see that so many statelegislatures have responded to fix this mess. But I don't think it's inappropirate, to bastardize Larry Tribe's phrase, to focus on "the unbearable wrongness of Kelo v. New London".

The case is, as you note, over. We all know what actually happened next: the city of New London is going to sue the tenants for backrent on the property that the city considers itself to have owned all along. What needs to happen next is that it should be overruled, and the sooner the better. I agree that doing so must wait until Stevens is off the court (n1), but in the meantime, should we really be greatful that State Legislatures are stepping into the breach and doing the right thing? I mean, it's nice and everything, but the idea of gratitude for these actions seems as wrongheaded as saying "thankyou for not being corrupt", or saying "thankyou for giving me the due process of law". They are institutionally required to do it, by the constitution, and personally by their oaths of office - wrong decisions by the Supreme Court notwithstanding.

This may or may not be relevant, and I may be saying entirely to much here, but I wasn't actually born in the United States. Those whose citizenship is conditioned on naturalization rather than right of birth carry with them a burden that very few native-born Americans who do not hold public office bear: we swear a solemn oath to "support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic", and I take that oath very, very seriously. I don't know, perhaps that affects my perception, but as far as I'm concerned "enemies foreign and domestic" includes Supreme Court justices who attempt to twist and bend the Constitution to suit their own agenda.


n1. Or maybe not; after all, the constitution changes, right? It's a living, breathing document, whose provisions must be interpreted in light of "the evolving standards of decency of the American people"; the American people having shown, almost unanimously, their disgust and revulsion at this ruling, maybe Stevens can actually vote to overrule Kelo without worrying about inconsistency. Every day is a new day in the world of the living constitution.

Posted by: Simon | Sep 15, 2005 1:50:30 PM


Not at all. The legislature RESPONDED to the Supreme Court to offer more protection to private property than the Court said was mandated by the Constitution. You can think what the Court did was wrong; or that it was right. But the Court in no way suggested to legislatures what THEY should do, and so it is not bucking the Supreme Court for a legislature to do what it always does: legislate.

Posted by: Hillel Levin | Sep 15, 2005 12:36:36 PM

Hillel, I am talking about "what happens next." (Did you see the phrases "public use clause" or "blatantly contrary to any coherent interpretation of the constitution" in my previous comment??) We're seeing "what happens next": the "legal actors" are reacting to the decision by protecting everyone except the poor fools who happen to be opposing monied interests. Isn't that nice and democratic.

Posted by: Paul Gowder | Sep 15, 2005 12:35:58 PM

"Buck" is right if SCOTUS got it wrong; it's wrong if SCOTUS was right.

Posted by: John Steele | Sep 15, 2005 12:30:53 PM

Once again, Paul and Simon insist on turning every discussion on Kelo into a discussion on the constitutional merits (although Paul does raise the discourse a bit by addressing state vs. federal legislation). And I understand that impulse. But don't *you* understand that constitutional law plays out on levels *other* than the constitutional merits? Descriptively, Kelo is what it is. How the media, the public, and legal actors react to the decision are all valid and important areas of inquiry--areas that tell us much more than navel-gazing as to whether the Kelo majority got it wrong doctrinally. The case is over. What happens next is what matters most.

Posted by: Hillel Levin | Sep 15, 2005 11:33:38 AM

Hillel: this proves exactly my point about corruption: the legislatures simply can not be trusted to protect the people. As soon as an entity with enough dough to spread around (i.e. the Cowboys) decides it wants some goodies, it all goes out the window.

This is why we have a constitution. Because we don't trust our government with certain temptations. The temptation to censor, the temptation to search, the temptation to steal homes and give them to whoever flashes enough green...

At a minimum, this is why we need federal legislation on this issue: football teams can bribe (directly or indirectly) the states, but they aren't quite rich enough to bribe the feds. You have to be a defense contractor or an oil lobby to pull off that trick.

Posted by: Paul Gowder | Sep 15, 2005 11:26:28 AM


Whatever you think of the merits of Kelo, when the Supreme Court declares that a state MAY do something, it does not follow that state MUST do that thing. By choosing not to do it, the state does not "buck" the Supreme Court.

Here's the parallel: If the Supreme Court were to overrule Roe tomorrow, Connecticut would not "buck" the Supreme Court by choosing to allow abortions.

The trouble is that you are hung up on whether the Court was right or not. That's not what either the article or the post is about. They are about the state's reaction to the ruling. And that reaction is not a "rejection" of the Court's ruling in Kelo.

Posted by: Hillel Levin | Sep 15, 2005 11:21:00 AM

This article discusses the Texas bill in more detail. I looked it up because I was curious what the other big exemption is; it seems to be sort of a generic economic development project with a flood control kicker along a riverfront in Fort Worth.

Posted by: alkali | Sep 15, 2005 11:18:44 AM

I think it's fair to say that Kelo curtailed the right in the sense that it took a right guaranteed by the constitution and exposed it to the discretion of the state legislatures.Explicit in the just compensation clause is the requirement that the taking of private property be for a public use; the Court has long accepted the principle that one is deprived of his property in violation of this guarantee if a State takes the property for any reason other than a public use. The question whether a particular intended use is a public use is clearly a judicial one, but the Court has always insisted on a high degree of judicial deference to the legislative determination.(Killian & Costello, The Constitution: Analysis & Interpretation, at 1371)

Posted by: Simon | Sep 15, 2005 11:10:51 AM

A special dispensation for the cowboys probably says very little about whether they really care about the issues in Kelo and a lot about the importance of the cowboys. There are legal principles and then there is football.

Posted by: Randy Heinig | Sep 15, 2005 10:52:11 AM

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