There is an very commendable article on the LFB blog which applauds an Ohio Supreme Court ruling that economic development is not a sufficient reason under the state constitution to justify taking homes, in other words overturning Kelo in Ohio. However what makes the article so interesting is that it correctly identifies the poor thinking behind Justice O’Connor’s interpretation of the issues:
I need not merely infer that O’Connor is one who believes in “balancing” the interests of victims and thieves. In her formal opinion, available at the web site of the Ohio State Supreme Court, O’Connor states that the Norwood case is about “the constitutionality of a municipality’s taking of an individual’s property by eminent domain and transferring the property to a private entity for redevelopment. In doing so, we must balance two competing interests of great import in American democracy: the individual’s rights in the possession and security of property, and the sovereign’s power to take private property for the benefit of the community.”
But, as the Founders themselves should have better understood and stated in framing the Constitution, the only “benefit of the community” that may properly be attended to in most possible cases has to do with the actual rights of the individuals who make up that community. The community is best off, in fact, if no member of it may ever be robbed by government and at the behest of “the community,” whether that “community” is a group of home owners who want to forcibly prevent a mall from being built on somebody else’s property by the persons who own that property, or a group of developers who want to forcibly impose a mall on the property of home owners.
Excellent article.
” Nor shal private property be taken for public use, without just compensation…” Fifth amendment to the US Constitution.
The feckless majority of the Kelo case overturned centuries of US tradition that the “Takings Clause” would be used for things that benefitted society; Railroads, canals, roads, bridges, airports…. things that the broader society eventually would have need of either dirctly or indirectly.
On the other hand, Kelo opens the door for Malls, Casinos, Marinas, maybe a new whorehouse in Las Vegas, basically anything a corrupt mayor and his developer cronies can conceive of to buy off a narrow constiuency.
Hooray for Ohio!
Uain,
Virtually all of the railroads and canals built here were done by private third party developers, we had no national railroads, and Gallatin’s early proposals for the great eastern seaway, accomplished with four key canals, were not done by the government, but by private companies, as was the Erie Canal and a number of others that were key to northern industrialization.
Here in NH, the legislature passed a bill empowering the railroads specifically to eminent domain property as they saw fit to establish their rail corridors: a wholesale delegation to a private third party.
I challenge you to explain why a private railroad is a public benefit but a mall is not. Both facilitate trade and commerce.
So, no, Kelo didn’t “overturn centuries of US tradition”. That being said, the US traditions, like slavery, in eminent domain were gross violations of the true spirit of self ownership, the right to property, and liberty and justice for all, upon which the US Constitution was founded and written. I for one would be overjoyed to see history write that Kelo was the last “Dredd Scott”-like eminent domain ruling.
Ahh….the holy rights of the individual. Where is that in the Constitution?
Anyway, never pass up a chance to ridicule Justice O’Connor. Nothing quite as sweet as kicking around someone not in power, is there?
Have you kicked John Kerry or Al Gore today? How about Jimmy Carter?
Nah. People like Kerry and McCain are too easy to kick.
btw, does anyone know if there has been any success in applying emininent domain to properties held by the Supreme Court justices? I’d have a real belly laugh seeing them hoist on their own petard.
In lots of places actually, but as usual I care little for constitutions, I care only for rights and the best theories for understanding the objective truth. But I guess you want to keep America safe for wealthy Property Developers and their lawyers, eh?
If you have a point, it is not clear.
I find them very kickable actually, klepto-statists that they are, just like I like kicking that other ghastly klepto-statist, GW Bush.
“Virtually all the railroads and canals built here were done by private 3rd party developers….”
Au Contraire!
The funding is often provided by government, the development often done by private parties. In the case of the Erie Canal, funding was first approved by Congress, but Monroe vetoed the bill, fearing that the plan was unconstitutional. The plan returned to New York where Govenor DeWitt Clinton, the former mayor of NYC and a major booster of federal funding, convinced the New York state legislature to approve funding in 1817. Much land along the route was purchased by the state to site the canal. Local leading citizens became sub-contractors to build it.
…I accept your challenge,
Even if a railroad is private, it could be safe to assume it serves multiple townships and maybe even states. Therefore, it gives the greatest service to the largest swath of the *public* and serves the largest number of stake holders. A Mall is a local endeavour and therefore does not have the same number of stakeholders.
Dale,
I’ve been trying to encourage groups in other states where Supremes have property to follow our example here in NH.
However, it is interesting that here, Breyer and Souter have been protected by ardent defenders of property rights, however, Logan Clements proposals for Souters land, and my own proposal for Breyers land, sufficiently motivated both parties in the state legislature to pass a state constitutional amendment, which goes to the voters in November, which greatly restricts eminent domain. It passed with an overwhelming majority, even Dem. state senator Peter Burling (Harvard buddy of Breyer, whose vacation estate is in Burlings district).
As a result of passage of the state constitutional amendment, I called off my project to target Breyer’s property. Clement is in NJ fighting for a family targed by ED, and others are having significant success in western states rolling back zoning and land use restrictions…. but nobody else has gone after other property of the Supremes.
Perhaps they just didn’t want to be seen as copy cats.
Uain,
Locality is immaterial. ED has been used to claim space for minor rail sidings to provide cargo rail service to companies that wanted it, so serving a “swath” is not a rational argument. It just means the scale of the theivery is greater.
And while I misspoke on the Erie Canal (leave it to New York to be the start of the socialism), the Eastern Intracoastal Waterway, as we know it today, began as a proposal by Gallatin which was turned down by the government, but developed in private by building of the Dismal Swamp Canal(Link), the Cape Cod Canal(Link), the Delaware and Raritan Canal(Link), and the Chesapeake and Delaware Canal(Link), all constructed by private entities, though in some cases, state governments were minority stockholders.
“…whether that ‘community’ is a group of home owners who want to forcibly prevent a mall from being built on somebody else’s property by the persons who own that property, or a group of developers who want to forcibly impose a mall on the property of home owners.”
Errrr nazzo fast, there, Guido.
If the community covenants / zoning restrictions say that “there shall be no commercial development undertaken in Area X”, then it’s not only disingenuous for a developer to build, oh, a rendering plant there, it’s mischievous for him even to attempt it.
There are two worldviews which shape this discussion: a country where there is little or no open land (eg. Britain), and a country where there is almost boundless land (eg. U.S.A.).
In a way, it’s easier Over Here, because there’s almost always an alternative location: it’s not always the case in Airstrip One.
I think a community has a right to decide whether it wants a Wal-Mart in the middle of its location, just as people have a right to leave said community if the place becomes a torpid economic backwater because of such policies.
Individual rights do not always trump the interests of the community, because, lest we forget, the community is made up of individuals, and as long as the polity is democratic (ie. all individuals have a say), then that’s the way it goes. As long as individuals’ rights aren’t trampled by the community (eg. like with Kelo), not much harm is done.
Only yesterday I drove through an area where there are no zoning restrictions, and the place looked like a Third World pit. (My wife’s comment: “I bet they’re libertarians.”)
Indeed, one has only to visit a few garden spots of the Third World variety to see the folly of having no community standards.
The development of the railroads and the Erie Canal were favored by the population because of westward expansion, which is DONE now. In Kelo, we’re not talking about homesteading former wilderness. We’re talking about government taking private property for developers! The “public benefit” is argued to be greater tax revenue. The government unit is greedy. This is clearly different than “public use.”
The “taking” is done with “just compensation,” but remember, they’re using GOVERNMENT ACCOUNTANTS to set the just compensation amount, and there is no appeal to this figure. I would think Samizdatistas would prefer to allow private parties to negotiate in a free market than use or even permit this statist price rigging scheme. At least private negotiations can factor in the “how bad do you want it?” aspect.
Kelo was a peasants with pitchforks moment if there ever was one within my adult lifetime. You would not believe the horrifying stories of things that have happened. The (Norwood?) Cincinnati, Ohio case in the decision blogged about was really horrifying. People were living in their houses spray painted with a big orange X on it, with police harassment, etc., any pressure the city could apply to force these people out.
The New London, CT case was about wiping out an entire middle class neighborhood overlooking the Thames, to build a Pfizer corporate building! That’s not public use at all.
A small town in Georgia wanted to ED out one small business so the car lot next door could expand! The city government had no business taking sides in this negotiation. They couldn’t do it, the business owner kept appealing and suing, so the city kept passing new ordinances and resolutions that made it damn near impossible for the small business to continue. This is an ongoing story.
I do voter education of young people and teach them how to be involved citizens–don’t just stew in silence and leave it to big money politics. Part of my spiel is talking about Kelo and how ordinary people in the states, all across the country, are demanding amendments to the state constitution, scrutinizing ED takings done by their government units, extracting campaign promises from candidates not to abuse ED.
Kim du Toit, you may want to hand over your property rights to your neighbors who have better ideas for your property and no concept of the golden rule. You sound like a petty collectivist statist tyrant to me, and you’re scary.
Actually, it isn’t. Individuals as communities don’t vote on bringing in WalMart or any other particular business. Neither do they vote on handing your property over to a big box retailer in an ED taking. Property rights are the basis of our liberties; it’s part of the concept of the “pursuit of happiness.”
However, I do agree with your point about unzoned areas. I live in the mountains of Appalachia, mostly unzoned, and you’ll see McMansions next to a rusty singlewide with an old car on blocks in the front yard, and free ranging chickens. There are only a few neighborhoods in the city for the uberrich that are zoned to keep the neighborhood nice and keep out the riffraff. I suppose these folks appreciate the zoning ordinances as an excuse for when Cousin Eddie has fallen on hard times and wants to put his rusty singlewide on your property. (Cousin Eddie from the Vacation movies, ha!) This zoning pattern works for the topography of Appalachia, and its patterns of multigenerational ownership of family land on certain mountains/hollers. There aren’t neighbor conflicts as bad as you’d expect, because they are extended family networks who are interdependent and mutually supportive/resourceful living in proximity. When I first moved here, I had a typical outsider’s view of the place, seeing only what was in front of my eyes, but now I know the social patterns and what I’m seeing represents, it makes me appreciate it more.