February 21, 2006

Good federalism?

States respond to the Supreme Court's eminent domain case, which left them a lot of leeway in seizing private property, by limiting the power of eminent domain as a matter of state law:
The reaction from the states was swift and heated. Within weeks of the court's decision, Texas, Alabama and Delaware passed bills by overwhelming bipartisan margins limiting the right of local governments to seize property and turn it over to private developers. Since then, lawmakers in three dozen other states have proposed similar restrictions and more are on the way, according to experts who track the issue.
Isn't this federalism at its best? People express outrage over the Court's narrow definition of a right, and the state legislatures supply the missing protection for the individual through state statutory law. But there's a bit of a political dysfunction. The state legislatures can appease their constituents and reap the political gains without paying to price of sacrificing their own power. The city governments must bear the burden:
The National League of Cities, which supports the use of eminent domain as what it calls a necessary tool of urban development, has identified the issue as the most crucial facing local governments this year. The league has called upon mayors and other local officials to lobby Congress and state legislators to try to stop the avalanche of bills to limit the power of government to take private property for presumed public good....

More neutral observers expressed concern that state officials, in their zeal to protect homeowners and small businesses, would handcuff local governments that are trying to revitalize dying cities and fill in blighted areas with projects that produce tax revenues and jobs.

"It's fair to say that many states are on the verge of seriously overreacting to the Kelo decision," said John D. Echeverria, executive director of the Georgetown Environmental Law and Policy Institute and an authority on land-use policy. "The danger is that some legislators are going to attempt to destroy what is a significant and sometimes painful but essential government power. The extremist position is a prescription for economic decline for many metropolitan areas around the county."
Should the constituents of the entire state determine the scope of a government power that is most significant in the cities? The majority within a city is going to have a different outlook. Presumably, when a city wants to undertake a project, the people in the city support it, so we shouldn't expect that circumscribed majority to be as enthusiastic about protecting property rights. And a city in need of development will probably have greater concentrations of liberal voters, who are less enthusiastic about property rights than the citizens of whole states.

20 comments:

HaloJonesFan said...

If all the constituents of a city agree that a particular area ought to be developed, then why can't they get together as a private group and buy the property themselves?

Eminent Domain means things like military bases and highways and toxic-waste dumps, not "Joe Schmoe wants to build a new minimall".

Slocum said...

Presumably, when a city wants to undertake a project, the people in the city support it, so we shouldn't expect that circumscribed majority to be as enthusiastic about protecting property rights.

First of all, I think that is not necessarily safe to assume majority support in a given city. Projects may be approved by local goverment representatives who ran for office for the sole (undeclared) purpose of approving a single lucrative project. Or who, even if they did not seek office for that purpose, may profit so handsomely from the project, that they don't care if they are ever re-elected. This is a recurring problem at the local level (city councils, county boards, school boards) where the job is only, a best, marginally worth the hassle and people are reluctant to serve multiple terms. In such cases, political pressures don't work as expected -- representatives may make unaccountable decisions because they just flat don't care if they are ever re-elected. Disputes about development are the main motivation for local recall elections, but this is a band-aid solution and not always effective.

But aside from those political dynamics, aren't legal guarantees of individual rights typically about protecting individuals from the tyranny of the majority? There would be no need for them if we didn't expect at least temporary and local majorities that would seek to trample them.

Consider the Kelo case. Before a site was selected, a majority of New Londoners might have been opposed because they weren't sure whether or not their neighborhood was to be condemned. But once the site was selected, a majority then knew their own homes were safe and might then favor the condemnation because it was going to provide benefits to New London as a whole at no expense to themselves. For this reasons, democratic decisions about eminent domain should be made about general rather than specific instances.

SippicanCottage said...

I adore it when "progressives" dress up their longing to return to economic and interpersonal barbarism in technicolor dreamwear threads.

The idea of pledging your fealty to the local lord in exchange for special, if very limited, rights and protection against competition has a name already, and it ain't federalism. That is, unless you spelled feudalism wrong.

The reason these cities are hellholes is because their governments shirked their essential duties and ran them into the ground. How increasing the power and revenue to these engines of destruction is "beneficial" to the general population is a topic for discussion in bedlam.

Nick said...

Of course... this is federalism at its best when you don't personally mind the outcome. Let's just ignore the actual words in the Constitution like "public use", and convince ourselves thats fine by saying its "federalism".

Anyone feel like doing that to the 1st Amendment too? After all, if its ok to do with the 5th, then why not the 1st?

Jonathan said...

Agree with Slocum and Sippican. Some things are wrong and govt shouldn't do them. The people whose property is to be taken will probably have different ideas about it than will those who benefit. Having a majority doesn't make it right, nor does the mere fact that an action passes Constitutional or legislative muster. Slavery was permitted by legislatures and the Constitution but was never right.

Are current legislative developments in response to Kelo examples of good federalism? I don't know. I am less interested in adhering to some standard of Constitutional reasoning than I am in protecting the rights of individuals. Nowadays this often means supporting measures that throw a wrench into the machinery of government.

"egidh"

dick said...

I am not sure that this is specifically a city problem. I recall the big mess when Gov Dukakis decided to build a prison in the middle of Massachusetts in a small town that had no transportation, was located in an aquifer area and thw townspeople did not want the prison. The state just kept going on the project even though the state already had property that could be used for the prison in the Boston Harbor region. How is the small town supposed to oppose the state using eminent domain evne though almost none of the citizens wanted the place developed that way in the first place.

I grant you that eminent domain may be used more in cities but the attachment people have to their homes, whether in cities or towns or country, is much the same. For the government to take property for the use of private developers is something that I think people will oppose wherever they live. The development may help the whole area but people will still kick if the government tries to shove people off viable and well-maintained properties to give them to other private operations. In these cases it should be up to the private operations to buy the properties, not for the private operations have the government kick the people out.

Henry said...

I wish that local government efforts to "revitalize dying cities and fill in blighted areas" had a better track record. I might be more sympathetic to their woes.

As for "The state legislatures can appease their constituents and reap the political gains without paying to price of sacrificing their own power" -- well the mixup of state and local power seems pretty much the status quo.

PatCA said...

Halo,
You beat me to it.

If such a redevelopment project has profit potential, why wouldn't private developers/individuals take it on? In the California suburbs, this fight happens every day. A city condemns and then grants free land to developers, who slap up new high density apartments or "town centers" every five miles, yet within a year many of those stores and restaurants are abandoned.

Every politician at every level would rather put up these consumer centers to generate taxes rather than deal with the complexities of the tax shortfall itself (the cash economy, profligate welfare spending, etc.) The CA Legislative Analyst estimates that the cash economy, for instance, costs our state $6 billion per year--almost exactly the same amount as our deficit. No politician wants to touch that with a 10-foot pole.

Somebody has to say no, and I'm glad the legislatures are doing it.

Kirk Parker said...

What Henry said. As someone who frequently suffers from Seattle's ability to dominate the politics of the entire state, I'm having a bit of trouble feeling that the turnabout isn't fair play.

Nick,

I see some clever lines there, but either they're too clever or I'm too dense, because your point seems completely unclear to me. Perhaps you could restate it?

ModNewt said...
This comment has been removed by a blog administrator.
ModNewt said...

Dick said...
How is the small town supposed to oppose the state using eminent domain evne though almost none of the citizens wanted the [prison] developed that way in the first place.

If the prison is state owned (i.e. not private) I don't think your example applies to what I and many others object to. A prison, like a school or highway, is for public not private use.

I object to a city closing an asian market that the city calls "blight" and gives it to Walmart. What the city really wants is more tax revenue.

ModNewt said...

The majority within a city is going to have a different outlook. Presumably, when a city wants to undertake a project, the people in the city support it, so we shouldn't expect that circumscribed majority to be as enthusiastic about protecting property rights.

The whole point is that the majority shouldn't be allowed to decide... if the property is to be used for private purposes. If my neighbors agree that having an Irish pub next door to them would be a good idea, should the city be able to take my house and sell it to a pub owner?

If my neighbors/pub owner cannot negotiate a fair price with me or I just simply like living where I do, the city should stay the heck out of it.

chuck b. said...

"And a city in need of development will probably have greater concentrations of liberal voters, who are less enthusiastic about property rights than the citizens of whole states."

I don't know about that. I think it would strongly depend on what the project is. A lot of people in cities don't want city government to assist developers in re-making city neighborhoods to their liking (i.e., profit). Here's a short excerpt from today's paper making my point (Link):

Telegraph Hill looks much as it did 50 years ago, for instance, but that doesn't mean you'll find young would-be artists in the neighborhood -- unless they're on their way to Caffe Trieste.

But as long as those settings exist, they remind us of what was. They're physical shadows of a sort, prodding us to look beyond the present and contemplate how our world came to be.

The buildings and landscapes we inherit should not be disposed of lightly or sold to the highest bidder as a matter of routine. Because once they're gone, they're gone forever.

Wade_Garrett said...

The "having a majority doesn't make it right" argument sounds suspiciously like substantive due process. I happen to agree, but then I am not generally critical of an activist judiciary. If you use the "having a majority doesn't make it right" argument here, then you shouldn't complain when liberals use it to dismiss statutes that limit abortion.

Thorley Winston said...

The "having a majority doesn't make it right" argument sounds suspiciously like substantive due process.

Only to those who don’t understand the difference between judicial review and substantive due process.

I happen to agree, but then I am not generally critical of an activist judiciary. If you use the "having a majority doesn't make it right" argument here, then you shouldn't complain when liberals use it to dismiss statutes that limit abortion.

Not really because (a) unlike abortion, the Constitution specifically limits the ability of government to take private property for public use and (b) abortion, unlike eminent domain, involves finding a balance between the rights of more than one party (mother, father, and child) rather than simply protecting the rights of one individual whose rights aren't in conflict with another.

But thanks for playing.

dick said...

I realize that my example of the prison was for statewide use. I brought it up because it points up how the government is overlooking the wishes of the people in the whole area by just barreling in without checking as to whether the people even want the things at all. Even when the citizens of the town where Dukakis wanted to place his prison brought up the aquifer problem and the people of Boston where the majority of the inmates would come from brought up the fact that they could not get there to see their family member, the state just ignored all the problems and continued ahead. When Weld took over as governor he was stuck with what to do with this boondoggle that nobody wanted.

I think that when the government wants to exercise eminent domain it needs to be for a pre-agreed upon use and then only for public purposes, not private. That was the point I was making. I don't know that in the Kelo decision anyone asked whether the citizens, not the government, agreed with the decision to take the properties. Apparently now that nobody wants the properties New London is trying to figure out what to do with the mess on their hands. Good!!

Wade_Garrett said...

"At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul." - Billy Madison

Thorley - you didn't address my main point. Substantive Due Process was read into the Constitution through the process of Judicial review. Without judicial review, there would be no substantive due process. Substantive due process is a sub-part of judicial review. The "it just doesn't seem fair" argument is substantial due process.

If the dissent in Kelo had its way, it would have struck down an act of the legislature in the face of 100 years of precedent which had always found that public use and public purpose are interchangeable. In other words, it just didn't seem fair to them.

Marghlar said...

Not really because (a) unlike abortion, the Constitution specifically limits the ability of government to take private property for public use...

Actually, that's what we in the business call an interpretive gloss. It doesn't actually say that; go back and read the 5th Amendment. The text of its own force doesn't limit taking private property at all; it just says that you have to pay people when you take it for a public purpose.

Irrational, you say? Maybe it is. Probably happened because the Framers would have had difficulty imagining taking private property for private use. Maybe there's an argument for a Ninth Amendment unenumerated right here... I'm not even necessarily saying that your interpretive gloss is bad -- I think it's a plausible conclusion to draw. But it's not the only possible one, so don't spout off about what the constitution requires.

As a rule, unless your claim is something like "The constitution says the president has to be 35" or "the constitution prohibits unreasonable searches and seizures," you can be pretty certain that the constitution doesn't require whatever you say it requires, just because you say so. We can usually say with some certainty a number of things the document doesn't say. However, as far as pinning down exactly what it is saying at its more ambiguous moments, no one is in a position to claim a unique position of interpretive superiority.

wwhawkeye said...

When you began the final paragraph of your post with a comment about what "a city" wants to do, I knew I was going to have trouble with the analysis.
"A city" doesn't want anything. Anthropomorphising legal fictions rarely clarifies the analysis, and in this case, it actually dodges the question.

John A said...

Off Topic?

ModNewt pretty much beat me to it, but please let me add -

"Should the constituents of the entire state determine the scope of a government power that is most significant in the cities? The majority within a city is going to have a different outlook."

And on a larger view (if perhaps in reverse], that is why Senators are per state while Reps are by population, and a large part of why there is an Electoral College, etc. These were tries at balancing city (lots of people) vs rural (fewer people) interests, and small States (Delaware) vs large (New York). The subject comes up every [national] electional, with city folk and farmer/herder folk both claiming to be discriminated against by the current system[s] and showing they do not understand that these things are compromises, and while better arrangements may be possible I for one have never seen one proposed.