Is That Legal?

Eric,

While we need, of course, keep a close eye on the Court's trashing of Separation and be vigilant against Holocaust/Internment deniers, I find it passing strange that you don't seem to think worth even a comment the most disgusting and dangerous decision that crowd has handed down in my memory: Kelo v. New London

Barry, I find it neither disgusting nor dangerous. I think much of the criticism (at least that which I have seen) has been way off the mark. I don't understand why people are so upset by the notion that their local planning board, rather than an unelected and distant set of federal judges, get to decide when a particular change in the ownership of private property serves a public purpose.

Perhaps one might argue that private property must always remain in the original owner's hands, and that no government entity should ever have the power to take it away (with, of course, compensation).

But that's not the world we live in--not even close--and so if we're going to live in a world in which governments can sometimes take private property for public uses, I think we're probably safer and better off with the decision about what constitutes a public use in the hands of local elected officials rather than federal judges.

There are plenty of matters on which we're better off with decisions in the hands of judges, of course, but they tend to be matters on which the local political process has proven itself untrustworthy. I've never thought that landowners were a group who systematically had trouble getting the ear of local elected officials.

Eric, this is a great take on the Texas case. But I don't see the same either/or that you do in Kelo. I think the court could have drawn a line that said you may call X a "public use" but not Y, the not-Y being "a use devised solely to raise tax revenues through private development and job generation." It may be reality (given the malling of urban America), but it is also a bit of a stretch to read a "public use" into pure private economic development. As O'Connor put it in her dissent: "To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings 'for public use' is to wash out any distinction between private and public use of property--and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment."

Slums were torn down for urban renewal, and I guess that's where the slippery slope started to cave, but I can see a "public use" distinction between those cases and Kelo.

If the line isn't drawn very clearly, of course, that's when the courts have to get back in, which is not so good. But as a local public official, I don't share your trust in local public officials not to abuse this broad new power.

But Sally, this is not a "new" power at all. Local governments have been doing this sort of thing for quite a while.

O'Connor is just wrong about this, in my view. I never buy the argument that says, "to construe a clause in this way is to delete it from the Constitution." The fact that judges don't have the final say over the meaning of a particular piece of constitutional text doesn't mean that the piece of text isn't in the document at all. It just means that we feel we can trust local officials to apply an acceptable meaning of the constitutional text over time. That's just democracy, right?

Sure, local officials will sometimes abuse their powers. When they do, they can be voted out of office. Judges can't.

I'm curious: do you believe that the risk of extreme use of the eminent domain power by local officials is so high, and so pervasive, that judges ought to be setting the rules? Do you have evidence for that? I'm not talking about a few anecdotes; I'm talking about something that would show the democratic process is malfunctioning in some basic way?

I also think you vastly overstate the ease (and defensibility) of drawing a line between public and private use. Congress sets a minimum wage, in effect forcing employers to surrender more money (that is, property) to employees than they might otherwise do. Yet surely that forced transfer of private property between private parties serves a "public" purpose, doesn't it? What is so different about the case of real property, then?

I should note that I'm overstating my case a bit. In reality I think the issue closer than I'm making it sound here, in this specific way: the ideas I'm presenting all come from substantive due process law--an area in which the textual anchor for a more rigorous form of judicial review is pretty weak. In the eminent domain setting, the textual clarity is something of a signal that a judicially enforceable value may be at stake. So I worry that what's true for substantive due process maybe shouldn't be true for eminent domain. Still, I think I'm ultimately persuaded that the line-drawing here would be so arbitrary (and burdensome for the courts), and the need for judicial review to remedy democratic process failure so slight, that the better result is just to leave it to local officials.

BTW, I know that I said "public purpose" in speaking of the minimum wage example, rather than "public use." I don't think the distinction matters here.

Al Maviva sends in the following comment, which MT-Blacklist has bounced for some reason:

I actually think the Court got it more or less right when you consider the two opinions. The Tejas opinion seems to me to amount to "a nod to the importance of a major religious tradition (especially within an ecumenical display) in civic life is okay." The Kentucky case appears to state that "if there is evidence that you were trying to church us up with the religious display, we aren't having it."

As for Kelo, it wouldn't bother me in a pre incorporation world. But since the 5th Amendment has been incorporated to the states, the states nd people have come to rely on it for the protection of private property from seizure at the hands of local councils, which often work hand in g-love with developers, big box merchants, and so forth. I've represented clients in eminent domain proceedings, and the compensation is not market value, but something less. Usually the compensation is what a comparably sited building and land elsewhere would cost. There is no reflection of the premium that a developer would be willing to pay for the land if the buyout was conducted under market rules. Likewise, there is generally no compensation for the destruction of branding and goodwill that is built up for a small business located in a particular spot over the years. For example a mom&pop store that locates across town often has a very tough time reestablishing a customer base. It seems to me that if the requirement for justifying a taking isn't public use but the intangible "public purposes," then the compensation should take into
account the intangibles lost as a result of the taking, which include loss of good will and business opportunity, and often complete destruction of a business. If you wanted to buy an individual's durable business in the private sector, you would have to pay some ratio of the gross income times three to seven years. A moderately successful law or accounting practice often sells for two to three times the annual billings. But in the case of a neighborhood
store that is wiped out (except in a relative handful of states) there is no recognition of the taking?s destruction of the business. Likewise, there is no reflection of the sentimental and psychological value which the owner would assign to the property. The market into which a developer should enter to obtain this property, is where the price ought to be set, rather than at a town meeting by a bunch of town fathers who more often than not, are in the hip pocket of the developer.

Regarding your comment about being more comfortable having this decision in the hands of the local council rather than the federal courts? yes, sure, I'm happy about the accountability aspects of it. That may be the sole bright spot.
However, in our society's dependency on the courts to right every wrong, and our looking on high to First Street, NE as the font of all wisdom, I think we've caused participatory democracy to wither. It will take a very long time to rebuild the habit of voter engagement and participation, if it can be rebuilt at all; though if Kelo has a bright spot, it is that it will encourage the 70% of families across the country who own homes, to pay attention to local politics & zoning. I'm not sure that selected takings, knocking off a neighborhood of bungalows occupied by poor folks here, a meatpacking plant there, gives sufficient motivation to get involved in politics. After all,
town councils will not use this newfound power to abuse the powerful and influential.

On the other other hand, it is possible fertile ground for bipartisan constitutionalism. I don't see Kelo as a right/left issue; restoring state
level protections requiring public "use" rather than some vague public "purpose" should be a non-partisan issue at least for non-corporatist
conservatives, and for liberals who believe in the importance of ownership of private property.

I am assuming the inner federalist in Eric is stretching its arms and clamoring to be applied broadly across the spectrum of opinions proferred at isthatlegal.org? :)

Like, sayyyy, in the Establishment Clause context?

For what it's worth, I thought both 10 Commandments cases and Kelo all came out right. Defining the scope of state and local power is better accomplished through state constitutional litigation. Judges can have a role to play, but it should be state judges.

Also, I think Eric's making a mountain out of a molehill in regards to Breyer's comment about the lack of legal challenge to the monument. It's not like that is the cornerstone of his argument, just a side point. Thus, one should not misconstrue it or insist that it be stated with ultimate subtlety. Breyer just means that it is notable that the ACLU and other such groups have never had a problem with that monument for decades. Not determinative, but worth noting.

You're right, Eric, O’Connor’s rhetoric is transparently over the top. But there is, or should be, a plan language argument beneath it. I think it should matter that the takings clause requires “public use” and not (a broader) “public purpose.” How do you get a “public use” out of an indirect public benefit from increased tax revenue?

It’s true that in at least in one context my point was lost long ago. In Berman v. Parker (1954), the Sup. Ct. affirmed the District of Columbia’s authority to take blighted slums for a particular “public purpose.” But: that purpose was found under the authority of the city’s police power, a specific and significant thing.

"Public safety, public health, morality, peace and quiet, law and order -- these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. [Cit. omitted.] Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river."

So it’s OK for a city to exercise its police power by taking a slum for the public purpose of making improvements to the general health and welfare. But the court said more: “We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” This is the broad language--not part of the holding--that opened the door to takings for redevelopment generally, without recourse to the police power.

The courts extend the law all the time, but Kelo represents a the crossing of a line that had held for 50 years. Part of the taking in Berman involved a building that was not “blighted.” The owners said wait, we’re a department store, not a slum. In the lower court, at that point, slight of hand ensues. From the S. Ct. opinion: “The District Court, while agreeing in general with that argument, saved the Act by construing it to mean that the Agency could condemn property only for the reasonable necessities of slum clearance and prevention, its concept of ‘slum’ being the existence of conditions 'injurious to the public health, safety, morals and welfare.'" It deemed it “reasonably necessary” to take the department store in the interest of cleaning up the slums.

I mention this to show that the line between “public use” under the takings clause (via the police power) and private economic development facilitated by a government taking can be drawn and indeed had been drawn till now. Come to think of it, it’s a wavery line in shifting sand, so much so that Justice Stevens, writing for the majority in Kelo, can claim that another result would place “an artificial restriction on the concept of public use.”

The result in Kelo has its own kind of logic. But I think it’s bad public policy. And for all the emphasis on leaving the decision to the local governments, which is a fine thing, we will see a whole new line of litigation challenging whether particular projects fit within the parameters of this opinion, or whether they are merely the transfer of property from one private party to another by government action, which is, thank goodness, still not permitted.

RWS:

Here's the language of Breyer's opinion:

"If these factors provide a strong, but not conclusive, indication that the Commandments’ text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner)."

Eric,

I am "upset by the notion that (the) local planning board, rather than an unelected and distant set of federal judges, get to decide when a particular change in the ownership of private property serves a public purpose", unanswerable except to the voters (and, then, only long after the damage is done) because I have lived in Chapel Hill during a time when the politico-philosophical make-up of the power structure, including the Board of Aldermen, was (how shall I put this?) less liberal than today. And if a developer with connections and money had proposed leveling, say, Northside so he could build something like Southern Village, the precious few liberal voices raised in protest would have been drowned out by the sound of bull-dozers.

Of course, that can't happen today. Can you promise me tomorrow? Or are you saying if the pendulum swings back the other way and the bull-dozers start down Mitchell Lane, that's "just democracy"?

Barry

Ouch. I will now retreat back into my hole.

In that case, Breyer's the one who's making a mountain out of a molehill. It would be absurd to refer to that as the piece that completes the puzzle.

So much confusion?! These comments make it sound as though the Ten Commandments are on the private property soon to be destroyed?! Guess everyone's lost track of where they're posting?! Makes this comment "mute" and unable to be completed - what am I doing here? Carry on kids.

I am teaching a UNCW grad course titled Eminent Domain v. The American Dream, and I find all of my students are aghast about the Kelo decision. For once in our long and unpleasant history, Barry and I agree on something. Protection of freedom of speech and private property rights are the foundation of the American way of life.

Anne Russell PhD