Judicial philosophy: The return of Kelo

As disturbing as it may be, eminent domain is written in the Constitution

July 23, 2005

Previously, we discussed the recently decided case of Kelo v. New London, where the Supreme Court reaffirmed the constitutionality of a common form of eminent domain -- using taken land for economic development. We said that, although the David-and-Goliath setup made the most sympathetic case possible for radical "Libertarians" and their vision of extreme property rights and impotent democracy, the case was totally unsurprising and the only shocking thing about it was that it came within one vote at all.

Thanks to an "outraged" Congress and various statehouses (led by the conservative ALEC network of legislators), this case has managed to keep in the news. While we don't have a problem with the legislature limiting itself (and local legislatures under its jurisdiction) in what it can and can't take -- indeed, that's what the Court has been telling it to do for a hundred years -- we must return to the overblown rhetoric about "judicial philosophy."

MYTH: In Kelo, the Court vastly expanded eminent domain and discarded long-held property rights

Judges who impose their own preferences, instead of following the law as it is written, have long been known as "judicial activists" while those who carry out the law, instead of rewriting it to suit themselves, have been said to be following the "original intent" of the law. ...

When Justices Scalia and Thomas enforce the limits set by the Constitution, that is not writing "their own new laws," no matter what Senator Leahy claims. Those who are writing their own new laws are people like Justice John Paul Stevens, who arbitrarily expanded the Constitution's authorization of government taking of private property for "public use" to allow the taking of private property for a "public purpose" -- which can be anything under the sun.

-- Thomas Sowell, "Calculated confusion," Town Hall, 7/21/05

In Connecticut's Kelo v. City of New London case, the Supreme Court, in a 5-4 decision, supported the city's use of eminent domain to force a private property owner to sell to a private developer. While conceding that the properties could not reasonably be called "blighted," the Court nevertheless said, " . . . [T]he city is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts." The decision acknowledged that New London's development plan does not allow the general public to use the land, but stated that since the "plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment." Incredible. ...

Governments historically use eminent domain to acquire private property for "public use," defined as a road, bridge or a school. Here, the city bluntly acknowledges its goal -- a higher tax base.

-- Larry Elder, "It takes a village ... of property owners," Town Hall, 7/21/05

In the recent Supreme Court case of Kelo et al. v. City of New London et al., the elaborate 20 page majority opinion of the Supreme Court is one of the most eloquent, articulate, intellectual efforts to ever rationalize or try to cerebrally legitimize the forced transfer from the legal, legitimate owner of non-blighted property to someone who is in greater favor with the ruler of the area. It is something that our high court can point to with pride that they almost make it sound "fair" that private property can be taken from one legitimate owner and forcibly transferred to one who offers greater financial rewards to the ruler. ... [W]ith an activist Supreme Court as we now have, the high court trumps all else including constitutional amendments since they can interpret those by inserting language that is not there.

-- Reps. Louie Gohmert (R-TX), John Carter (R-TX), and Ted Poe (R-TX), "Eminent domain and the elitist bent," Washington Times, 7/13/05

The use of eminent domain to condemn property and purchase it at a fair market value for public purposes, to build roads and erect other public facilities, has been an accepted practice by state and local governments, though one that is restricted by the Fifth Amendment to the Constitution. It guarantees private property shall not be seized by eminent domain except for "public use" and in such cases, only for "just compensation." But in the case against Susette Kelo, the city of New London went far beyond that constitutional stricture and said her property could be taken, not for public use, but to promote local economic growth by turning it over to developers for anything from strip malls to amusement parks.

-- Donald Lambro, "Home, seized home," Washington Times, 7/18/05

REALITY

Honestly, we truly are sympathetic to abuse of eminent domain. There is something outrageous about eviction, and most of these economic development projects occur in lower-income neighborhoods where small owners can lose out on the big value boost from public investment. That's why liberals like Maxine Waters of LA and John Conyers of Detroit are supporting conservative-led Congressional action to limit public use.

And all too often, local economic development plans give away far too many enticements to corporations -- tax waivers, infrastructure, free land, even cash -- without getting any promises in return. It's dumb and desperate. Even as individual owners are forced to sell, the public itself might get shafted by the deal.

But there is something to be leery of in the wording of such laws. While, generally speaking, the rights of citizens to just compensation and a fair and open process should always be strengthened, the difference between an extortionate slumlord and a victim of local corruption is not found in philosophizing about the words "public use."

The Fifth Amendment (and the Fourteenth, in the states) guarantees that "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Contrary to the firebreathing rhetoric from Libertarians, this unambiguously grants the government power to take for public use, as long as the compensation is just.

Libertarians have been satisfied, apparently, with the Court's just-compensation interpretation -- that was not at issue in Kelo, and not commentator has mentioned it, perhaps because it detracts from the poignancy of the case. Instead, they focus on the "public use" part, and claim that this means the property must be owned and operated by the government.

In Kelo, the Court rejected this line of argument, allowing that public use includes the public using the land with the help of private contractors. This obviously echoes the 1954 opinion (Berman v. Parker) about economic development of blighted neighborhoods. But the basic capacity of government to use eminent domain to transfer property from one party to another -- to "use" the property for public ends, by private enterprise -- goes back to the beginnings of the republic.

This was the case in the first chartered corporations, developing roads and bridges (see Curtiss v. Georgetown and Alexandria Turnpike Co. (1810)). And this was the case in the building of the railroads, which would connect the coasts and create the nation as we know it.

Thomas Sowell, in his article claiming the Court's decision in Kelo was "judicial activism," defines the opposite of "activism" this way:

Justice Oliver Wendell Holmes said it in plain English, that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."

But in 1916, Justice Holmes found the "plain meaning" of "public use" to be use-for-public-purpose, including use by a private power company:

The principal argument presented that is open here, is that the purpose of the condemnation is not a public one. The purpose of the Power Company's incorporation, and that for which it seeks to condemn property of the plaintiff in error, is to manufacture, supply, and sell to the public, power produced by water as a motive force. In the organic relations of modern society it may sometimes be hard to draw the line that is supposed to limit the authority of the legislature to exercise or delegate the power of eminent domain. But to gather the streams from waste and to draw from them energy, labor without brains, and so to save mankind from toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all our welfare. If that purpose is not public, we should be at a loss to say what is. The inadequacy of use by the general public as a universal test is established. (Mr. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power (1916))

To say, as Sowell and his cohort do, that "public use" means strictly "public ownership" is simply textually and historically incorrect. Such an interpretation would preclude using private enterprise to carry out the use designated by the public, as seen in the necessary railroad development. These commentators could also argue, although none have bothered, that although public ownership is not necessary, the property needs to be accessible to the public -- but as Holmes makes clear, that precludes projects like power plants, which require certain physical locations, and even power lines and telephone wires, upon which no man can travel.

What we are left with after these challenges is what we had at the beginning: "public use" means the public wants to use it for something. As frighteningly broad as that sounds, it happens to be in the Constitution -- understood more or less for the last two hundred years. Kelo offered nothing new, and the overreaction is bizarre, if typical.

Limiting this broad power of eminent domain is a necessary endeavor, but it is not one that can be easily drawn up in a categorical sweep. That's why the Court has always left defining the scope of eminent domain -- outside of clear corruption -- to the legislatures.

If there is a need to fix eminent domain today and bolster our property rights, it ought to start in the text of the Fifth Amendment (and, as a consequence, the Fourteenth). We should make sure the compension is just -- although Kelo et al. did not complain about the money. More importantly, we should write out a civil rights act that outlines the due process right before being deprived property. Then, individuals can pursue claims of injustice on the facts surrounding their cases, rather than on spurious reinterpretations of the Constitution. If the government can prove its taking is necessary for the public-use project, then hopefully no one will get "taken" by the deal.

But unfortunately, conservative ideology has a mental block at the mention of civil rights. It would almost seem that they would prefer property rights be some kind of separate category -- and they do, applying Fifth Amendment "takings" to apply to all manner of regulation of business. This theory of property rights has it that a dirty chemical plant is owed "just compensation" for any pollution laws the government applies to it, since a part of the monetary value of that business has been "taken" away by increased costs. Doesn't make a lot of sense, but there you have it.

And, as a consequence of the lurch away from civil rights, in recent years the conservative Rehnquist court has limited the capacity of Congress to enforce all manner of Fourteenth Amendment protections, leaving Congress few options but to categorically prohibit classes of eminent domain using the hamhanded powers of Commerce and Spending, rather than expanding and defining the property rights of individuals.

Whether restricting "public use" to some ill-informed category will empower low-income owners against unwise "yuppification," or instead doom others to hopeless ghettoes without public investment, is yet to be seen. But what should be clear is the irony of Libertarians decrying violations of rights while their own limited-government Constitutional philosophy prevents individuals from full recourse.