Takings and the "public"

Professor Bainbridge, Tyler Cowen, Logical Meme and Orin Kerr (just looking at blogs on my blogroll) all have a negative reaction to today’s Supreme Court decision of Kelo v. New London (which holds that the town of New London, CT is allowed to take some private homes so that the land can be used for a new privately owned development).

I just don’t get the reaction. First of all, it’s a local government and not the federal government that’s doing the taking. The Constitution places greater restrictions on the federal government than it does on state governments. The Bill of Rights was never even intended to apply to the states. The very same Fifth Amendment where the takings clause is found also talks about Grand Jury indictments, but most states don’t require a Grand Jury indictment.

The plain words of the Fifth Amendment read, “nor shall private property be taken for public use, without just compensation.” This clearly implies that takings of private property are perfectly constitutional so long as there is “just compensation.” People are taking too narrow of an interpretation of the word “public.” By the very nature of government action, a taking is for the benefit of the public. Whether the property is ultimately transferred to private developers doesn’t change the public nature of the action. The government is certainly allowed to sell its property to the private sector.

If people are complaining that these takings of private property are unfair, then that’s related to whether the compensation is just. If the developers are making big profits from the development, then perhaps it would be just if some of those profits were shared with the original property owners. But this issue is separate from whether local governments should be allowed to take property in the first place.

UPDATE

Read my post on the Incorporation Doctrine.

Comments

[David]

You seem to be arguing that anything a local government wants to do is by definition a "public use," which essentially reads "public use" out of the text. I have never seen anyone else advance that reading. Indeed, your reading would do precisely what even the majority in Kelo says government can never do: use eminent domain to transfer property from owner A to owner B because it likes owner B better. Justice Thomas's dissent does a nice job of tracing the historical meaning of the "public use" requirement, and if his history is even close to right, "public use" has a lot more teeth than you suggest.

[Scott S]

He probably advocates local governments taking the property of Muslims and giving them to bitter graduates of third-rate law schools. :)

When I heard the ruling my first thought was to strangle the majority - another bizarro-world interpretation of the Constitution which they are presumed to be at least aware of. But from an interesting blog entry on Mises.org, I have to agree that the 5th amendment is meant for federal takings, and this case should either have not been brought before the court, or they should have rendered the decision they did - not because taking people's land away to give to private mall developers is in any way 'public use' (hint: it isn't), but because they do not have a say in what state/local government can do (at least with regard to this, a local issue). It does suck, but who is at fault is the local government and the state supreme court.

As for their recent medical marijuana decision..well they can get all the credit for that; getting both interstate commerce AND the 10th amendment wrong takes talent.

[Eric]

Actually, your argument that the Bill of Rights does not apply at the state level is completely incorrect. We can demonstrate that in two ways. The first is commonsense. If the Bill of Rights did not apply at the state level then states could try you twice for the same crime, local police could come into your home without a search warrant and the state legislature could write anti free speech laws. Since you probably realize that the states cannot do those things, it seems obvious the Bill of Rights applies to the states as well.

However, to make it crystal clear for everyone, we passed the 14th Amendment, which has created what is known in constitutional circles as the "Doctrine of Incorporation". Read section 1 of the 14th Amendment. It says that every citizen has the same rights and that states may not change them.

For more analysis, see my posts here and here. I also have a round up of libertarian and conservative reactions that may clear a few things up for you, like why this is absolutely destructive to individual rights in this country. Finally, you may want to consider why the "living document" theory of constitutionalism is what led to this and why that is so destructive to the rule of law. I discuss that in my post Originalist vs. Living Document.

[John]

Interesting original post. I admire the heck out of Tyler Cowen, but I really am not all that upset about this decision. The city government adequately showed that the condemnation was pursuant to a larger plan that had been adopted to benefit the whole city -- to me, it's not unreasonable to find that this taking was for a public use. Of course, you could have a corrupt government that could come up with a false public pretext for transferring property from poor locals to rich developers, but we have courts to sniff those abuses out. Also, the local officials themselves are subject to recall if their takings outrage enough people (which is certainly likely to happen if at least some property owners don't sell voluntarily, as many had done in New London). Something similar happened in my town a few years back: the town council had purchased a ton of land for some big, expensive water-treatment project (which I personally thought was a good idea), but most of the council was subsequently voted out and replaced by new council members who were against the project and who caused the town to sell all the land it had bought up. The point is that, even after this ruling, governments are still not free to condemn right and left.

[KipEsquire]

"The Bill of Rights was never even intended to apply to the states."

Do yourself a favor and educate yourself on the Incorporation Doctrine.

[Michael A. Clem]

This kind of decision is the reason why libertarians cannot be strict Constitutionalists. It's a flawed document. The separation of powers between federal and state governments is not a principle, but merely a strategy or tactic, a process for limiting power. And the Incorporation Doctrine blurs that separation of powers.
While we may prefer decentralization because it increases individual options, it's hard to cheer when the federal government decides to let an authoritarian state law or state court decision stand.

[Scott S]

"Of course, you could have a corrupt government that could come up with a false public pretext for transferring property from poor locals to rich developers, but we have courts to sniff those abuses out."

This was the first time I've been able to laugh while thinking about this decision. Thank you.

[Tom O'Neill]

One can argue this point from a few angles. The first is to explore whether or not this decision is consistent with existing laws. The second is whether these actions are consistent with right and proper behavior. In my opinion, and the opinions of the other bloggers you referenced, the former argument is not worth discussing given the obvious answer to the latter.

Legality does not equal morality.

[christyf]

Well, they were only taking these people's homes, it's not like they were trying to prevent them from having anal sex!

[Peter]

You stated that:

By the very nature of government action, a taking is for the benefit of the public. Whether the property is ultimately transferred to private developers doesn’t change the public nature of the action.

I’ll give you a moment to look at that statement to see if you can figure out what is wrong.

It is the confusion of saying that local government is presumptively acting in the public interest and saying so categorically. That is the difference between giving them the benefit of the doubt
and saying they are right because they are by definition right. I do favor giving local government a presumption of good intent, but all presumptions are potentially rebutable.

Over the past few years, there have been nearly 10, 000 cases of municipalities redistributing property between private owners. 6,000 where sales made under the threat of confiscation, the rest were actual confiscations and transfers. In one case a city took the car lot of a Toyota dealer and gave it to the next door, and presumably better connected, BMW dealer.

The reason people are upset about this decision, aside from the fact that the court screwed up, is that it pushes us closer to a 3rd world system - where property rights are written in pencil. By that I mean political power becomes the chief source of wealth. Take a look at Zimbabwe, the expulsion of a productive ethnic minority from the land is underway to provide spoils to the supporters of the resident thug. When Saddam first came to power in Iraq, members of his tribe had carte blanche to take over the whatever property struck their fancy - title like power flowed from the barrel of a gun.

The hallmark of the American system is that the market, even with all is defects, has the final say in the selection of winners and losers in the economy. If you think there is injustice in the current arrangement, just wait till politics smothers the market.