Kelo Watch
The Institute for Justice continues the fight against eminent domain abuse, tracking the new depredations in the wake of the Kelo decision and launching the “Hands Off My Home” campaign, complete with a “governor’s pledge.” (PDF. But if you’re a governor, by all means click.)
Meanwhile, around the ’sphere . . .
Matthew Hogan offers $50:
Just be first to convince me: at my email notanempire- at – aol.com (you know how to fix that) that the textual language of the 5th Amendment to the US Constitution and its Takings Clause RESTRICTS government takings only to situations of “public use.”
Near as I can tell, Matthew is not making the too-clever-by-half argument that the literal meaning of the Constitution requires compensation for “public use” takings but permits “private use” takings without compensation. (Refuting this is simple enough. Ask yourself, “Why would the framers have wanted to restrict public use takings more than private use ones?” Answer: the very thought is absurd. Therefore it cannot mean that.) He’s saying instead that the clause makes no effort to define a restrictive meaning of “public use,” and therefore Kelo’s circular interpretation – public use is any purpose for which a government siezes property – is constitutionally correct.
Seems to me one has to head to the Federalist and the records of the Constitutional Convention to sort this one out. A weakness of our, or any constitution, though, is that the writers will scant full explication of truths they hold to be self-evident, leaving easter eggs for later generations of the power-mad throughout the document.
Atrios writes that
But, by all means, let there be a backlash. Eminent domain has been used for years, sometimes for good and more often for ill, in the name of urban renewal or neighborhood improvement. Minority and poor neighborhoods were generally the targets. I’m quite happy for more middle class people to be a bit angry at the idea that the state can make you sell your house to them. When an issue goes from being something that can happen to other people to something that can happen to you, maybe you start to take notice.
So, please all you people who are concerned about this issue – make it a local one, make it a state one.
This is all well and good in its way. But try substituting “prohibiting abortion” or “speech restriction” or “warrantless search and seizures” into the above passage and see how you like it. The whole purpose of rights is to safeguard spheres of life from majoritarian encroachment and from abridgement by the democratic process. The idea that one’s only “right” to keep enjoying one’s home or business depends on having the energy and wherewithal to out-duel alliances of big-time campaign contributors (developers and national and multinational corporations) for the current affections of the most recent winners of the local popularity contests we call elections is outrageous. (Especially when you consider how low turnout is in most local elections. The notion that any given county council represents the popular will is absurd.)
Meanwhile, Julian Sanchez explains the outrages of Kelo and Raich in terms of the “Sorites Paradox.” It amounts to a causal explanation of slippery-slope phenomena.
Finally, a particularly asinine critique of my earlier Kelo posts just falls inside the sweet spot of “offensive but managing to provide fruitful fodder.” One of the problems with eminent domain law and Kelo’s deference toward the legislature is that, while eminent domain comes with “compensation,” the process is ripe for abuse. There are all kinds of problems with determining “just compensation,” as a recent Hit & Run thread notes.The takers have an incentive to minimize what they pay. The now firmly established tradition of legislative deference gives property owners little recourse to appeal lowballing by the authorities.
My own puckish remedy is to amend the Constitution to mandate “poetically just compensation.” Maybe you get the Mayor’s house. Or maybe you get royalties from all revenues the project generates. Perhaps one of the construction magnates whose donations to the county councilmembers’ campaign coffers did so much to move the project along has to settle his vacation house on you. The posibilities are endless.
Comment by Rich Puchalsky —
July 2, 2005 @ 8:25 am
“The idea that one’s only “right†to keep enjoying one’s home or business depends on having the energy and wherewithal to out-duel alliances of big-time campaign contributors (developers and national and multinational corporations) for the current affections of the most recent winners of the local popularity contests we call elections is outrageous.”
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Outrageous but true. But really, it has always been true. The only difference between Kelo and a bog-standard urban renewal project or wilderness development project is that this time, what’s being taken is middle-class houses. Atrios is right.
Comment by Rich Puchalsky —
July 2, 2005 @ 8:57 am
And as for the “Hands Off My Home” campaign — it shows what you can do quickly if you’re well-funded, but fundamentally I’m not impressed. The grass-roots Castle Coalition that they’re trying to build through co-optation of existing local groups still shows signs of being created by lawyers. From the “About the IJ” page : “The Institute for Justice is the nation’s premier libertarian public interest law firm. Our successes don’t depend on the compromise required by the political process, legislation and lobbying.” Maybe they’ve hired people who actually do know what they’re doing with community organizing, but the last sentence quoted above indicates that their existing institutional culture isn’t going to be of much use. They need to turn more of their Web site over to grassroots activists and have less vaguely unsure corporatese (like the repeated assertions that I saw to “Be creative.”).
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As for the rally they’re having in New London — too little, too late. If they had started on their Castle Coalition-suggested grassroots organizing plan five or six years ago, it would have a lot greater chances of success then now.
Comment by Rich Puchalsky —
July 2, 2005 @ 9:56 am
Three comments in a row — oh well, I keep thinking of something else to add. Here’s a bit on the breakup of poor neighborhoods by eminent domain, a mural from L.A., where neighborhood history is visual:
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http://www.grconnect.com/murals/html/r13img0104.html
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Note the CDBG in the mural — Community Development Block Grants.
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If you want to see more mural pictures from L.A., I took them as a hobby at one time, and put them at:
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http://rpmurals.home.att.net/
Comment by Jim Henley —
July 2, 2005 @ 10:09 am
Thanks, Rich. Were the Kelo plaintiffs really middle class? I’ll take your word for it. And I agree that eminent domain has traditionally fallen most heavily on poor people’s communities. Jane Jacobs was among the first to rail against this. FWIW, libertarians generally revere her work.
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Your concerns about IJ’s ability to do real grass roots work are good ones. I hope they figure it out. They ARE lawyers by trade and almost certainly by instinct, so they may be at a disadvantage once the courts have ceased to be a viable avenue.
Comment by the talking dog —
July 2, 2005 @ 10:23 am
Well, the “compensation” is, usually, determined after lengthy litigation in the nation’s courts. Once again, we see that the Supreme Court has elevated the courts into the nation’s most powerful branch of government. Unbelievably, Nancy Pelosi and a crew of Democrats, as usual, behaving inexplicably, are opposing a reasonable measure intended to weaken Kelo’s actual effect sponsored by Tom DeLay no less. I mean– like a stopped clock, DeLay can be right once a while, for Gawd sake. But apparently, Pelosi can’t…
So, there you have it: we are NOT merely existing at the private whim of the powerful via their purchased legislative agents, but more at the whim of the non-elected judiciary.
But hey– they all went to college and law school, so they must be right all the time, right?
Comment by Scott Chaffin —
July 2, 2005 @ 5:37 pm
Unbelievably, Nancy Pelosi and a crew of Democrats, as usual, behaving inexplicably, are opposing a reasonable measure
Good lord…someone get me some oxygen. How did such an out-of-left-field thing happen?
And, in all seriousness, not just Pelosi and the Dems. Did you really just notice that the courts, and especially the Supremes, might possibly be doing an eensy bit more lawmaking than they were originally allowed to do?
Comment by Glaivester —
July 3, 2005 @ 11:36 am
I wonder how people would feel if they were told that it was okay to rape someone as long as you paid them the going rate charged by prostitutes.
Comment by Rich Puchalsky —
July 3, 2005 @ 5:06 pm
I wonder how people would feel if they were told that they should feel exactly the same about their property as they do about their body.
Comment by Jim Henley —
July 3, 2005 @ 5:51 pm
Dunno. Some people do, I think. Otherwise nobody would ever disobey an evacuation order in the face of a hurricane. For better or for worse, Palestinians nor Israeli settlers seem to feel something very close to the same. People love the familiar fiercely, and we invest considerable familiarity in what we own, especially those of us in the working and middle classes (the folks eminent domain and abusive eminent domain are most likely to hit). The root of that word “familiar” may be instructive.
Trackback by Opiniatrety —
July 5, 2005 @ 6:25 pm
Sorites and Kelo
via Jim Henley, Julian Sanchez uses the sorites paradox to explain what’s wrong with Kelo (the recent eminent domain Supreme Court decision) and Raich (the medical marijuana decision). But though the sorites paradox may–I said, may–provide some supp…