Posted on 07/06/2005 10:13:33 AM PDT by Torie
Second Thoughts on Kelo
A proper understanding of property rights suggests that the Kelo decision wasn't so bad after all.
by John Hinderaker
07/05/2005 12:00:00 AM
THE SUPREME COURT'S DECISION in Kelo v. City of New London has sparked a great deal of comment, most of it critical. Conservatives, in particular, have denounced Kelo's holding that economic development projects are a "public use" that municipalities and other government units can use eminent domain to carry out. George Will's analysis was representative:
The question answered yesterday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes.
Many conservatives seemed to enjoy waxing populist over the decision; Pfizer, Inc. was a popular target. Pfizer-bashing started at the top. Justice Thomas, writing in dissent, said that the majority held, "against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'" Justice O'Connor, also dissenting, echoed the theme: ". . . any boon for Pfizer or the plan's developer is difficult to disaggregate from the promised public gains in taxes and jobs." And the Washington Times editorialized:
City officials sought to lure Pfizer there to build a $300 million research facility with the understanding that the surrounding parcels of land could be developed into an upscale complex of residences along with a marina, hotel and conference center. . . .The city argues that because Pfizer can pay more taxes, and because it can provide more jobs, it will make better use of the Ft. Trumbull properties than the ordinary people who currently own them.
In fact, however, Pfizer has little or nothing to do with the New London project. In February 1998, Pfizer announced that it would build a global research and development headquarters on a site in New London that was then used as a garbage dump. It was after Pfizer's announcement that the city decided to embark on a redevelopment project that would include land near Pfizer's. Pfizer completed construction of its research and development headquarters four years ago; its project was in no way contingent on the city's separate redevelopment efforts. Pfizer--whose spokesman noted that the company's role in the New London condemnation case has become an "urban legend"--has no involvement in the Kelo case, no interest in the property at issue, and has never supported either side in the controversy.
In reality, the New London economic development project is similar to efforts that hundreds of towns and cities have made to revitalize aging or depressed neighborhoods. Focused on a 90-acre area called Fort Trumbull that is comprised of both publicly and privately owned land, the project includes a typical mix of public and private uses: a pedestrian "riverwalk," a waterfront hotel and conference center, marinas for recreational and commercial uses, a new Coast Guard Museum, new residences, and an industrial park to which the city hopes small biotechnology companies will be lured by Pfizer's nearby research facility. The city created the New London Development Corporation ("NLDC") to carry out the Fort Trumbull project, and, as is usual in such cases, gave the NLDC powers of eminent domain to acquire the necessary parcels of land. The NLDC was able to negotiate purchase agreements with most landowners, but a few refused to sell and ultimately commenced the litigation that reached the Supreme Court.
Fort Trumbull is such a typical mixed-use municipal development project that it is a little hard to understand the significance that commentators have given to the Court's decision. The issue before the Court was phrased very broadly by the majority: "We granted certiorari to determine whether a city's decision to take property for the purpose of economic development satisfies the 'public use' requirement of the Fifth Amendment." Thus, if the minority had prevailed, no municipality in America could condemn any property in order to carry out an "economic development" project. This would have the practical effect of making such projects virtually impossible.
It is noteworthy, however, that the Supreme Court held long ago that a governmental unit can use its eminent domain power to relieve "urban blight" (see Berman v. Parker, 348 U.S. 26, 1954). That principle was not challenged by any party in the Kelo case or by the Kelo dissenters (with the possible exception of Justice Thomas). So, had the dissenters been in the majority, a city would be powerless to carry out a redevelopment project in a neighborhood that is only depressed--like Fort Trumbull--but if it waited until the neighborhood is actually blighted, a redevelopment project would be permissible. Permissible, but probably too late. It is not obvious how this result would represent an advance for either individual rights or public policy.
MANY CRITICS of the Kelo decision have said that it authorizes seizing the property of one person merely to give it to another. Apart from any misunderstanding of Pfizer's role, this can only be because, once the NLDC acquires title to the Fort Trumbull property, it will be conveyed to a developer, Boston's Corcoran Jennison, to carry out the project. Some hostility to the Kelo decision seems to be based on the belief that Corcoran Jennison may profit from its work--an odd concern, one might have thought, to be expressed by conservatives. But New London's use of a private developer highlights an important point: there is no doubt that the city (or the NLDC) could use its eminent domain power in support of the Fort Trumbull project if it planned to retain ownership of the land and administer the project itself. If the project were publicly owned, no one could question that the associated condemnation proceedings would be in support of a "public use." But are the rights of Americans any less imperiled by condemnation in support of publicly-owned projects? And, as a matter of policy, if a city wants, for example, to create more housing, does it make any sense to force it to pursue the long-discredited practice of building public housing projects, rather than facilitating the use of private capital and private management to achieve the same end?
There have, in fact, been development projects in recent years that have strained the Fifth Amendment's "public use" requirement to near, and perhaps beyond, the breaking point. In a number of instances, cities have condemned thriving businesses to clear space for a company to erect its corporate headquarters. Such transactions--very different from anything at issue in Kelo--can perhaps be characterized as seizing property from one individual or business to give it to another.
Even here, though, it is possible to sympathize with the affected municipalities. Suppose a large company whose headquarters are located in an urban area needs more space--say, a whole city block. Lacking powers of eminent domain, it has only two choices. It can negotiate with each landowner on the block and try to buy all of the individual parcels. This, however, is often difficult or impossible; once it becomes known that the company is buying land for its corporate headquarters, any individual landowner can block the project by refusing to sell. Occasionally such "holdouts" are motivated by sentimental attachments, but usually they simply want to extort an unreasonable sum from the corporate buyer. (It is interesting that in her Kelo dissent, Justice O'Connor stressed that: "Petitioners are not hold-outs; they do not seek increased compensation. . . ." Yet the majority opinion notes that "[t]en of the parcels [at issue] are occupied by the owner or a family member; the other five are held as investment properties." If petitioners had won their case, the value of those investment properties would have skyrocketed.)
Faced with the difficulty of assembling an adequate real estate package at a reasonable cost, our hypothetical company has one obvious alternative: buy a cornfield remote from any city, and erect a "campus" rather than a high-rise building. Rather than accept the loss of a major employer and taxpayer under these circumstances, it is not surprising that some cities have chosen to cooperate in development projects that put the city's eminent domain power at the disposal of a private company.
Today most significant development projects involve multiple uses and cooperation between public and private entities. While such projects can no doubt be subject to various abuses, they can also be enormously successful and of great public benefit--to take just one example, consider the spectacular renovation of Baltimore's inner harbor. Moreover, two factors minimize the danger that economic development projects pose to individual rights. First, they are carried out in the glare of publicity. Nothing in local government attracts more scrutiny or more criticism than such projects. Second, the Fifth Amendment requires that anyone whose property is taken for a public use be fairly compensated, and in practice, most takings are compensated generously. Thus, while condemnation can undoubtedly impose hardship on individuals, it is unlikely to result in gross injustice.
The principal threats to property rights lie elsewhere. In particular, regulatory actions often severely limit what an owner can do with his property. Unlike urban development projects, such regulations are often adopted in forums that are remote from, and unresponsive to, the political process. And what an owner generally hopes for in such situations is to be covered by the Fifth Amendment's guarantee of compensation for the loss of use of his property, which is automatic in the case of a condemnation.
So it is a good thing that the Kelo decision has focused attention on the erosion of property rights; but, despite the critical consensus that has formed among conservatives, it is far from clear that the case was wrongly decided.
John Hinderaker is a contributor to the blog Power Line and a contributing writer to The Daily Standard.
I think so, too. I also think this issue is ripe for a "correction". I usually hate the idea of correcting Supreme Court travesties with amendments to the constitution, but this is such a case.
That's like saying that the act of stepping over the edge of a cliff is OK because the previous steps didn't take you over the cliff, only got you closer.
The precedents were wrong. Even the Michigan Supreme Court turned away from the cliff when they overturned Poletown, which had previously provided much of the existing the rationale for taking property for increased value to the government.
But SCOTUS, drunk on the notion that words mean what they want them to mean, took the final step over the cliff. When even Sandra Day O'Connor won't join you, it means you've gone too far.
"Given the existing precedents, Kelo was correctly decided"
Given existing precedents slavery would still be the law of the land.
Can't anyone read this damn document. Public USE is not synonymous with public BENEFIT! And the crux of the matter is who are you to decide that my property could be put to better use by someone else.
FTS.
What idiocy. The precedents were wrongly decided.
Be interesting to see if the Weekly Standard has a dog in this hunt. I'd be interested in seeing a list of their advertisers.
I only have two words for the extreme court decision. Unfortunately they would be pulled almost as fast as I could post them.
Exactly. Despite what Nancy Pelosi might think, supreme court decisions are not Holy Writ.
This is corporate conservative spin. Same as corporate liberal spin I've read - focus on slums, ignore that now a local authority can take any property on the basis "public use" = increasing tax revenue.
The "second thoughts" are a variable related to how much lobby money is behind the writer.
Expect to see a MSM "debate" deciding Kelo decision is both correctly "conservative" and "liberal."
Rathen than accept the loss of one citizen taxpayer, the city gets to say we like taxpayer x better than taxpayer y, Y you move. This is unAmerican.
I'll say this in favor of Kelo - the decision certainly illuminates the actual relationship between the State and the citizen.
Apparently, 'inalienable' rights exist only until the State can rationalize extending its powers and, well, alienating them.
Of course, I don't think that it'll be much fun to be the collection agent (especially if the folks in the village in question decide to turn in their ammo first-via airmail), but that's another matter. :>)
>>Expect to see a MSM "debate" deciding Kelo decision is both correctly "conservative" and "liberal."
By then, they will focus their attention on another attractive woman who is missing. This story has peaked already in the minds of most editors/producers I bet (and I haven't seen much of anything out here about it, which tells you how important it is to most MSM).
Well, unless there is armed resistence or bloodshed. Then it will lead the evening news.
Agreed. It seems to be an attempt to remove Pfizer from the argument to eliminate the "big guy vs. little guy" spin. The real "big guy" is the government here not the industry. This argument makes the decision no less unpalatable.
The real point is that it is your property, not that there may be a better use.
I think it has to do with the notion that this is a democracy (two wolves and a sheep voting on what's for dinner). We are (or at least were when the constitution meant something) a constitutionally limited republic. That is in keeping with the notion by our founding fathers that the PRIMARY purpouse of government is to secure the rights and posessions of it's citizens, NOT to improve their standard of living by giving them handouts or benifits that it takes from others.
That being said, it is impossible to reconcile the decision with the intent of the founding fathers and it is therfore an un-constitutional decision...
That smells.
The state should seize property for the benefit of the people . . .
not for the benefit of the government.
and not for the benefit of a corporation.
Does this decision mean that the lands bought by the environmental groups,often with taxpayer money,for the pupose of non-development,are fair game?
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