July 5, 2005

Okay, you Kelo haters.

Powerline's John Hinderaker writes, in The Weekly Standard, that Kelo is not so bad. (My Kelo-is-not-so-bad posts are here and here.)


Meade said...

Ann Althouse - once again on the cutting edge of reasoned unhysterical discourse and general all-around good taste.

Matt said...

Much as I'm frequently reticient to either agree with or call "reasoned discourse" anything that comes out of Powerline, he raises some very good points contrary to the "THEY'RE COMING FOR YOUR HOUSE!!!" hysteria that hs propigated on both sides in the wake of Kelo.

Allah said...

Count Judge Posner among the "sky is not falling" crowd.

anthony said...

These pro-Kelo arguments are unpersuasive. Ann Althouse and John Hinderaker heavily rely upon the adverse effects of the holdout (what they characterize as "extortionate") scenario to defend their position that Kelo is not so bad. They both also assert a bright line ruling would have been contrary to the Constitutional intent of the Framers.

What makes this unpersuasive to me is that this is a highly selective use of the scenario to make their argument. When applied to another form of property, they would obviously reject the same reasoning. They both "hold out" for remuneration above a certain level commensurate to their experience, fame, etc. Yet both would strenuously object to their skills being drafted into the use of the public benefit via another private party against their free will, and especially if the remuneration level was below what they consdered their normal due, and perhaps even if the remuneration level was equal to or even above their normal levels. By using their scenario as selectively as they are, they are saying it is perfectly okay to do this with property, yet not with one's productivity.

Yet what is property other than the distillation of years and even decades of productivity? What is the reasoning chain that rejects the State taking one's productive capacity under certain public benefit criteria yet accepts the same action for the same rejected criteria after the productive capacity is simply converted to another form? Does the conversion process, which is simply an aggregation mechanism, somehow imbue the end result with less protection?

Both Ann and John argue that rejecting a bright line ruling in favor of a local sorting out is a good outcome, and that local processes are a better brake on abuses of eminent domain. Ann rightly so takes many anti-Kelo conservatives to task for saying they want federalism, and then squealing like stuck pigs when they got it in this case (perhaps what these conservatives really want is legalism, a rigid and inexpansive interpretation of the Constitution).

That is all well and good, but then why did both Ann and John overlook that the immediate effect of Kelo in the actual contested New London development is the usurpation of federalism? Unless of course, they both think federalism is only a good idea at the federal-state level of interaction, and not appropriate for the state-municipal level (in which case I'd like to hear the argument that asserts federalism only works in certain levels of government). In the Kelo situation, it is the state of Connecticut that is driving the condemnation process. 100% of the residents of New London could come out against the development plan, and it wouldn't matter; the New London Development Corporation could still proceed in face of perfect 100% local opposition to the development plan.

I'm not in the "property rights no longer exist!!!" camp, but as I've posted earlier I think the economic effects of expansive economic development efforts by governments are very deleterious, a discussion of which probably properly belongs on some economics blog instead of here. However, I'm very curious about the legal angle because the doctrines both Ann and John present as defenses of the Kelo majority just don't seem very rigorously applied.

SippicanCottage said...

Hinderaker says the sky's not falling. That's doesn't mean it isn't cracked. I detest when people look at things with far reaching consequences ten minutes after they become law, and say, see, nothing bad happened today, you were all wrong. Ten or twenty years go by, and every one is standing around saying, whoah, I didn't see that coming, and now we can't get rid of it.

Saying that Pfizer isn't really involved, among other things he posits, are just straw men. It reads like someone assigned to defend an idea he doesn't believe in, and muddies the water instead of arguing. Visit the Kelo website, and take a lesson: The Kelo house, heretofore left as alone as anything in that town by the gummint, is a lovely little home, with the obvious pride and love of the homeowner literally written all over it. All around it is the moonscape wrought by government action.

The idea that the government is doing this with the vague idea that someone that works at Pfizer might like to live there, and failing that, the residential faeries might come and sprinkle gentrification on that ash heap is way more disturbing than if someone from Pfizer really was involved.

The City of New London, like most big cities, was destroyed by government action, not because of a lack of it. Bribery, logrolling, welfare, public school curriculum destruction, insane zoning, all capped with an atomic powered tax rate chased all but a few hardy souls away. And now they say, we weren't wrong, we just didn't try our crack brained scheme hard enough. The ruling says, no matter how you spin it, that the goverment decides who gets to keep their home, how much market value is, instead of, well, the market, and who gets the use of it. And spare me the nonsense that private contractors building it, or the gummint building the projects makes any difference. Someone else ends up living on your property.

I prefer Mark Steyn:
"A couple of days beforehand, the majesty of the law turned its attention to "eminent domain" -- the fancy term for what happens when the government seizes the property of the private citizen. It pays you, of course, but that's not much comfort if you've built your dream home on your favorite spot of land. Most laymen understand the "public interest" dimension as, oh, they're putting in the new Interstate and they don't want to make a huge detour because one cranky old coot refuses to sell his ramshackle dairy farm. But the Supreme Court's decision took a far more expansive view: that local governments could compel you to sell your property if a developer had a proposal that would generate greater tax revenue. In other words, the "public interest" boils down to whether or not the government gets more money to spend.

I can't say that's my definition. Indeed, the constitutional conflation of "public interest" with increased tax monies is deeply distressing to those of us who happen to think that letting governments access too much dough too easily leads them to create even more useless government programs that enfeeble the citizenry in deeply destructive ways."

John Shaw said...

So many of the Kelo critics are those who wanted to limit the power of the Federal government, claiming that more of our government should be handled by the states. Now is their chance. The state legislatures can change their laws to limit the use of eminent domain.

The same critics who want to be able to use the Federal courts to fight eminent domain oppose the use of Federal courts to protect such basic human rights as the right of two consenting adults to participate in certain sexual activities.

John Shaw

SippicanCottage said...

John, with all due respect, you're entitled to your own opinion, but not your own facts. We're discussing Amendments to the Federal Constitution. In the highest Federal Court. Seems like the place where it belongs.

You would do well to remember that the foundation stone of the federal ruling against sodomy laws was a right to privacy. You won't have much of a right to privacy if you don't have a right to live in your house in the first place.

You are correct, that Eminent Domain matters should be handled at the state, or even the local level. This isn't eminent domain, it's unlawful taking, if the US Constitution means anything. I guess it doesn't.

Kathleen B. said...

anthony: "both would strenuously object to their skills being drafted into the use of the public benefit via another private party against their free will"

It has been my understanding that the military draft often or always included specific drafts of people with needed skills. so if the military drafts doctors then its ok, but if the military does so and then the doctors have to work at a military contractor, then it's not ok? even if the work is the exact same? guess we should all be opposed to the privatization of the military then.

G said...

What I see here is more evidence of a disconnect between the legal/political communities and the general population. Ann and John make a point that Kelo is consistant with the direction the courts have taken over the last 50 or so years. Well, I don't think I'm alone in saying that doesn't make the decision right.

I also think they are a overly optimistic in their confidence that Kelo won't be seriously abused.

Bruce Hayden said...

Expanding on what G said, it seems more and more obvious to me that blind adherance to stare decisis is leading us places many of us would rather not go. That this sort of thing has become common does not mean that it is right.

Fred Ochsenhirt said...

Where you come down on Kelo largely depends on where you think courts will go from here. Ann and John look at Kelo as a floor - cities can seize private property for private development if it's part of a massive mixed-use economic development project (like the Baltimore Inner Harbor project praised by John). If so, then maybe it's not horrible (although I still think the courts have gotten it wrong since at least the railroad cases and should have fixed the problem rather than adhering to bad precedent). But virtually all of the Inner Harbor is available for public use. You can walk the piers, shop in the shops, stay in the hotels. New London takes this down a notch, with most of the development office space not generally accessible to the public. Cities are chomping at the bit to diminish it even further, seeing the decision as proving that any economic development project is ripe for eminent domain, any project that increases tax receipts or makes an area prettier. If the lower courts stop those efforts, then it's bad, but not horrible. If they don't, then Kelo is just as bad as critics say it is.

Joaquin said...

I love the innocent, childlike, thinking that Kelo won't be abused. What folly!
What law hasn't been stretched to the max to meet ones needs?? Now you have a ruling dealing with one of the most valuable of commodities, real estate. A commodity that is the platform for every single fortune in the world. Yeah, it won't be abused! Keep dreaming.

Jonathan said...

Of course it will be abused. Look at the revealed preferences of local government officials, who have been quoted widely as favoring this decision. These are the same bozos who routinely misplace funds, tolerate (or participate in) corruption, get rolled by sports-team owners over stadium purchases, and generally give away the store to any big businesses that threaten to leave town. If local-government officials anywhere favor any big-money development scheme involving public money or eminent-domain property condemnation, you can bet that the main beneficiaries will be well-connected private businesses rather than the public at large.

Mike Scholes said...
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