From Mises blog. Archived comments below.
See also “A Libertarian Defense of Kelo and Limited Federal Power” and links therein.
Woops, They Did It Again (Bad Supreme Court! Bad! Bad!)
The Supremes rules today (Kelo v. New London; related article) “that local governments may seize people’s homes and businesses against their will for private development.”
As I’ve noted, the conservative Justices are generally much better than the liberals, on both Constitutional interpretation and economic and civil liberties, Justices O’Connor, Scalia, Thomas, and Rehnquist dissented. The case concerned
some Connecticut residents whose homes are slated for destruction to make room for an office complex. They had argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas. As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.
But in truth, from the libertarian point of view (which I take it favors decentralization generally, and honest interpretation of the Constitution in accordance with its original understanding), the dissent is mixed. The conservative Justices are correct, I believe, that the Fifth Amendment permits only takings for public use, not for private use; and that the type of taking concerned is best viewed as a taking for private use. However, the dissent is incorrect, in my view, in agreeing with the established precedent that the Fifth Amendment applies to the states. It originally limited only the feds. A state “taking” that was uncompensated, illegal, or for private use might have been prohibited under the state’s constitution, but did not violate the Fifth Amendment. The Fifth Amendment was held to apply to the states by “incorporating” it into the Fourteenth Amendment in 1897.
As I’ve argued elsewhere, the incorporation doctrine of the Fourteenth Amendment is flawed. All nine Justices mistakenly see the Fifth Amendment as applying to the States. So in this respect, Thomas et al. are no worse than the liberals; they all make the same error. But given this assumption, the conservatives have be better legal analysis of the Fifth Amendment.
Had I been Justice, I would have refused to overturn the state law–although I agree it is a taking for private use–because the federal Constitution primarily limits the feds and not the states, because the Fifth Amendment does not limit the states, and the Fourteenth Amendment–neither its Due Process clause nor its Privlieges or Immunities clause–meant to “incorporate” the substantive provisions of the Bill of Rights.
So the liberal majority got it right in its conclusion, but not its reasoning; and the conservative dissenters were right about the analysis of the Takings Clause itself but failed to recognize that it should not be applied to the states in the first place.
My views on this are elaborated in this post, Libertarian Centralists. (See further discussion of this on the Liberty & Power blog here, including many of my comments elaborating on some of the points made above.)
Published: June 23, 2005 11:46 AM
According to jerks like him, cities and towns have “no other choice” to combat the low property taxes that citizens currently enjoy. For example he pointed to several homes near Applied Development’s “Pier Village” which were appraised for $60,000 – $90,000 and which are now in the $500K-$600K range.
Published: June 23, 2005 11:49 AM
Published: June 23, 2005 12:25 PM
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Published: June 23, 2005 1:15 PM
Published: June 23, 2005 1:16 PM
Sure. Or take it and say they have no jurisdiction. Either way.
Published: June 23, 2005 1:17 PM
Published: June 23, 2005 1:27 PM
Published: June 23, 2005 1:44 PM
Connecticut’s Constitution says, in Sec. 11: “The property of no person shall be taken for public use, without just compensation therefor.” Connecticut’s own courts should have overturned the expropriation under Sec. 11. Why they did not, I don’t know. But State Courts are, from the federal perspective, the final interpreter of state laws. The Feds should have no say so in it at all, IMHO.
The Supreme Ct. decision indicates “the [Connecticut Supreme Court] held that such economic development qualified as a valid public use under both the Federal and State Constitutions.” Now, in my view, the feds ought o have no power to review Connecticut’s courts’ intepretation of its own state constitutional provisions. And the federal Constitution does not and should not place restrictions on Connecticut in this regard anyway.
The initial choice is to rule either that the Supreme Court and the feds do, or do not, have jurisdiction or power over these type of state matters. To hold that they do not is not ruling “against” the homeowner. If a Chinese citizen sued China in US court, and the US court properly dismissed the case, would this be ruling “against” the Chinese citizen?
Published: June 23, 2005 2:11 PM
I am not supporting government at all, but the way it was supposed to be (time to get nostalgic now, bring in the violins) would have kept the central government away. Voting with your feet, moving to another state would have enabled people to find better places to live and work. Decentralism does not eliminate government, but to a certain extent reduces its influence in that it gives us a chance to hop from jurisdiction to jurisdiction.
Published: June 23, 2005 2:28 PM
Published: June 23, 2005 2:52 PM
Published: June 23, 2005 3:51 PM
Certain houses in the Fremont Hills are on 1 acre lots. The houses were built several years ago and are assessed in the $1million range. The city would prefer to take these lots and build houses 6-8 to an acre at $750,000 each to obtain the extra revenue.
In the Hayward hills, there is a valley that has many small farms. The area is currently zoned for farming. Local developers have been trying for years to get the area re-zoned so that several thousand cracker-box housing developments can be built. With Alameda County strapped for cash, this area now becomes a prime target for condemnation.
No municipality wants a church/synagogue/mosque built in a business or residential area since they are exempt from property taxes and generate no taxable revenue.
Many private developments such as shopping centers, if sponsored by the municipality, qualify for tax exempt financing. The muni-bonds are then paid off by the residents or businesses, depending on how the bonds are classified. This amounts to subsidizing the development, creating a moral hazard and the possibility of mal-investment.
This is troublesome. When the Raiders came back to Oakland, the renovation of the Coliseum was funded by muni bonds. At the time there were a lot of complaints that the scenario for paying back the bonds was not feasible. This turned out to be the case. In the S&L; scandal, the president of Bell Savings and Loan went to jail for making loans that had little or no chance of being paid back. However, none of the Oakland Board of Supervisors was ever called to task, even though they were warned in advance that the financing was suspect.
Local government officials, in general, are notorious for the abuse of zoning regulations for personal gain. I fear that this ruling will open the flood gates, and that unscrupulous developers and corrupt public officials will see this as a golden opportunity to profit at property holder’s expense.
As libertarians, we no longer need to be concerned about property rights – after this ruling, we don’t have any!
Published: June 23, 2005 3:57 PM
Published: June 23, 2005 4:09 PM
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However, if I was on the USSC, and I had the power to prevent a State government from stealing someone’s property, I would do so. Is this compartmentalizing the problem?
Published: June 23, 2005 9:05 PM
Published: June 23, 2005 9:41 PM
Published: June 23, 2005 9:54 PM
Published: June 23, 2005 10:18 PM
What’s interesting is that real estate as an asset class is due for a very sharp decline. This has been forecasted for at least 10 years by Bob Prechter and his group in Georgia. It’s always amazing to see how public policy lines up to deliver the conditions that are forecasted using Elliott Wave theory. Ditto with the new bankruptcy law; the credit boom is ending and a credit collapse is likely. Government adds another log to the bonfire every time the sun comes up.
Published: June 23, 2005 10:29 PM
Published: June 23, 2005 11:17 PM
2. “Fee simple”: land is still held of the king, but that is all: the land may be inherited freely, disposed of as one pleases, etc. De facto complete ownership.
3. “Land held in tenure” — what _kind_ of tenure? This term requires an adjective. In England & Wales nowadays (& for some few centuries), landowners are technically ‘tenants-in-chief’ of the Crown. That is, they all hold directly of the Crown with no intermediate lords. In practice, meaningless: Passing governments are _not_ the Crown — heaven forfend. Politicos have to use specifically political doctrines legitimising officials’ seizure of people’s property.
When you Americans revolted against a German king, you wound up identifying the State with whichever transient govt held power for the moment. At least we Brits still have some notion that the govt is a temporary thing — quite separate from the Crown.
Published: June 24, 2005 12:11 AM
But my main point, as I next noted, is that we really have the state as an overlord still–not b/c ofthis ancient history, but because the state can extract property tax. The very fact of property tax means we are NOT “de facto” owners. It means we are de facto tenants, renting from our lords.
In my view, “ownership” means the “right to control.” If we are speakaing of the de facto or legal situation, legal ownership means the legal right to control. States have the power to take our property–and to make us pay an annual fee to keep it. It seems to me that states are still overlords, despite the lack of signficance of the remnant English feudal terms.
I happen to agree w/ your implicit point–that it was arguably a mistake for the colonies to rebel in 1776, leave the traditional monarchy, and establish a new, invented, utopian construct that was doomed to failure.
Published: June 24, 2005 12:20 AM
2. I agree that land taxation means, de facto, that the taxer is the final owner. But in England at least, we sheet home the the tax to the right perpetrator — the govt now in power. Because the Crown is separate from politics, the damage is placed where it belongs: on the govt, ie, politicos. It is the govt — politicos — who tax us. The existence of the Crown means politicos cannot pretend to be some grand overarching fabulous entity, the State.
Published: June 24, 2005 1:34 AM
Murder related to the smuggling of aliens. (8 U.S.C. 1342)
Destruction of aircraft, motor vehicles, or related facilities resulting in death. (18 U.S.C. 32-34) )
Murder committed during a drug-related drive-by shooting. (18 U.S.C. 36) )
Murder committed at an airport serving international civil aviation. (18 U.S.C. 37) )
Retaliatory murder of a member of the immediate family of law enforcement officials. (18 U.S.C. 115(b)(3)[by cross-reference to 18 U.S.C. 1111] ) )
Civil rights offenses resulting in death. (18 U.S.C. 241, 242, 245, 247) )
Murder of a member of Congress, an important executive official, or a Supreme Court Justice. (18 U.S.C. 351 [by cross-reference to 18 U.S.C. 1111] ) )
Death resulting from offenses involving transportation of explosives, destruction of government property, or destruction of property related to foreign or interstate commerce. (18 U.S.C. 844(d), (f), (i)) )
Murder committed by the use of a firearm during a crime of violence or a drug trafficking crime. (18 U.S.C 930) )
Murder committed in a Federal Government facility. (18 U.S.C. 924(i)) )
Genocide. (18 U.S.C. 1091) )
First-degree murder. (18 U.S.C. 1111) )
Murder of a Federal judge or law enforcement official. (18 U.S.C. 1114) )
Murder of a foreign official. (18 U.S.C. 1116) )
Murder by a Federal prisoner. (18 U.S.C. 1118) )
Murder of a U.S. national in a foreign country. (18 U.S.C. 1119) )
Murder by an escaped Federal prisoner already sentenced to life imprisonment. (18 U.S.C. 1120) )
Murder of a State or local law enforcement official or other person aiding in a Federal investigation; murder of a State correctional officer. (18 U.S.C. 1121) )
Murder during a kidnaping. (18 U.S.C. 1201) )
Murder during a hostage-taking. (18 U.S.C. 1203) )
Murder of a court officer or juror. (18 U.S.C. 1503) )
Murder with the intent of preventing testimony by a witness, victim, or informant. (18 U.S.C. 1512) )
Retaliatory murder of a witness, victim or informant. (18 U.S.C. 1513) )
Mailing of injurious articles with intent to kill or resulting in death. (18 U.S.C. 1716) )
Assassination or kidnaping resulting in the death of the President or Vice President. (18 U.S.C. 1751 [by cross-reference to 18 U.S.C. 1111] ) )
Murder for hire. (18 U.S.C. 1958) )
Murder involved in a racketeering offense. (18 U.S.C. 1959) )
Willful wrecking of a train resulting in death. (18 U.S.C. 1992) )
Bank-robbery-related murder or kidnaping. (18 U.S.C. 2113) )
Murder related to a carjacking. (18 U.S.C. 2119) )
Murder related to rape or child molestation. (18 U.S.C. 2245) )
Murder related to sexual exploitation of children. (18 U.S.C. 2251) )
Murder committed during an offense against maritime navigation. (18 U.S.C. 2280) )
Murder committed during an offense against a maritime fixed platform. (18 U.S.C. 2281) )
Terrorist murder of a U.S. national in another country. (18 U.S.C. 2332) )
Murder by the use of a weapon of mass destruction. (18 U.S.C. 2332a) )
Murder involving torture. (18 U.S.C. 2340) )
Murder related to a continuing criminal enterprise or related murder of a Federal, State, or local law enforcement officer. (21 U.S.C. 848(e)) )
Death resulting from aircraft hijacking. (49 U.S.C. 1472-1473) )
Stefan, you’re the lawyer – please explain.
Incidentally, while I agree in general with your analysis, from a practical point of view, now that the Supremes have ruled, I think its going to be open season on property rights. It’s only been two weeks since the Medical Marijuana ruling and the DEA Schutzstaffel have already begun kicking down doors in San Francisco. At least in this case they did not invoke the Interstate Commerce clause! Nobody argued that the city might need to confiscate private property to build a Greyhound bus terminal! 🙂
Published: June 24, 2005 2:15 AM
widespread (and government-schooling-inculcated) belief in an underlying socialistic interpretation of human existence. And, unfortunately, there is never a shortage of ambitious enterprisers ready to fashion a “public benefit” whose value is clearly demonstrable to the majority whose support they require in order to arrogate the property of some to that majority (while taking their “split” in the form of profit). It’s no different than ag subsidies, tariff protection, “progressive” taxation, welfare and health-care programs, blah, blah, ad nauseam. It’s not even clear that the aggrieved disagree in principle–only that it should happen “somewhere else” than where their own interest is concerned.If I were to find a siver lining in this particular cloud, it would be its visibility–its clear, resentment-engendering, political potential. Where there are interests, there are opposing interests which may be aroused to (sometimes) thwart the pillagers. Maybe even a celebrated berserker shooting or two–who knows?
Personally, I am persuaded that almost the only matter of overwhelming importance to those anxious for liberty and sound economy is that of monetary affairs. No matter how long it can be held off, monetary collapse is
the inevitable outcome of past and present policies and the record of the past in dealing with such occurrences holds little in the way of hope of Misesians for greater (and growing) liberty. The rest is attention-grabbing but ultimately diversionary.
Published: June 24, 2005 6:42 AM
Published: June 24, 2005 8:08 AM
Published: June 24, 2005 9:07 AM
Published: June 24, 2005 9:53 AM
Published: June 24, 2005 10:14 AM
Good point. I did not mean to write anything to imply otherwise.
Walt, I regard your long laundry list as pettifogging. I am of course aware that federal law does prohibit some types of murder. These are always murder-plus-something-else, like murder of someone with some connection to interstate commerce (which Congress claims jurisdiction over), or murder of a federal officer, etc. But plain-jain murder is NOT a federal crime, and cannot be (without totally abrogating the Constitution). Only murder-plus-something-else. Unless there is a special federal connection, it’s just not a federal crime to murder someone.
You are right to some extent, but not completely. Unfortunately, states have bought into and accepted the notion that the Supreme Court is the final arbiter of the Constitution and its legal standards, and that these standards do apply to the states. Therefore, if the Supremes say that “public use” can include the types of uses in question, then perhaps it will influence state courts and agencies to construe even their own constitutional limitations similarly.
In other words, technically a state could have in its constitution a similar provision to that in the 5th amendment. And technically they could say that a commercial-use type taking is okay under the 5th amendment, but not under their own–it’s perfectly constintutional for states to provide for MORE rights in their own constitutions than the federal one does. But if the provisions are worded similarly and if the state provision is modeled after the federal one’s language, which is often the case, yes, then I agree, this decision by the feds is unfortunate.
The right decision would have been to dismiss the case on the grounds that the 5th Amendment simply does not apply to the states–perhaps with dicta added that the taking in question is probably not a public use, anyway.
I don’t agree though that this decision means it’s “open season” on property rights at all. Municipalities and cities and states are still responsive to some degree to bitching by their constituents, so even if they have the power to take something there will be pressure not to abuse it too much. Further, the states still have to pay for what they take. That is another disincentive.
Frankly, as I wrote in the posts linked above, I don’t really think the public-use/non-public-use distinciton makes mcuh sense. Why is it worse to take a shopping center than a home, or vice versa, etc. What’s the difference? Why is it worse to take property and let the government own it, than to take it and let a private company own it? What’s the difference?
Some states privatize. Some states do functions that in other state are handled privately. Imagine a country where railroads and roads are run by the state. The state takes your property to widen the road. That’s allegedly a public use. But what about a country with a minimal state where the roads are private. But the public/private use distinction, the state here cannot take property to sell it to a private road builder. Why not? Why should the state that at least allows private roads be penalized? If the state cannot expropriate property to give it to a private road builder, why can the state take it and give it to a criminal public agency that runs roads? The latter is two evils, no? Why should the state that does the WRONG thing–socializes a given field–be rewarded by being allowed to expropriate for itself? The point is that something is public if the state takes it over. That means it’s not an objective category or classification in the nature of things; it’s just descriptive of what the state is, and does. Which means: the public-private distinction boils down to this: the state is permitted to take your property and keep it. But it is not permitted to take it and give it or sell it to a private user. Why is this rule so sacrosanct? Once my property is stolen, why do I care who it is given to? I care primarily that I either get it back, or get paid for it. The rule actually sets up an incentive for the state to expand its domain, so that more things are “public” and thus more takings would be “for public use.”
Published: June 24, 2005 10:16 AM
experience core forming it has been accustomed to another sort of property-recognition climate and is suddenly surprised by abrupt change. And, though the wealthy might avoid the direst consequences through diversification of assets, there are a-plenty of folks prone to have in their “basket” not much else but the single “egg” represented by their home. Of course, I fully agree that, to the extent that the type of practice of which we speak becomes general and more to be expected, a rearrangement of the very values assigned by the market will become ever more accurate and commonplace–to the detriment of nearly all–not much different than the fall-off in productivity concomitant with the tax-penalization of such productivity. In the final analysis, almost all such authoritarian interference tends toward the production of results almost diametrically opposite those originally sought by the interference. But the fact that the pillagers are ultimately unsuccessful does little to assuage the discomfort of those deprived while hardly ever serving as an object lesson for the mistaken (even those motivated by ideas of public service rather than private aggrandizement).
What else is new?
Published: June 24, 2005 10:30 AM
Published: June 24, 2005 10:58 AM
because I was not a Southerner;
Then they came to take our money and instead issue only paper, and I did not speak out–
because I did not have very much gold;
Then they came for a tax on our incomes, and I did not speak out–
because I was not wealthy;
Then they came to socialize my retirement and health care, and I did not speak out–
because I was going to be old one day;
Then they came for my property–
and there was no one left to speak out for me.
Published: June 24, 2005 11:10 AM
Published: June 24, 2005 12:46 PM
Published: June 24, 2005 1:05 PM
Disabled – check.
Sick – only in some states.
Elderly – being worked on.
Political opposition …
In the battle for liberty, libertarians find they have a problem because the institutions often will only provide liberty by doing something which they probably ought not do if things were in their proper state.
The Supreme Court ought not override the states, but if the states are corrupt, is it better for them to override such corruption or be true to original intent?
Sometimes the Dragon burns it’s own brood. I think this is a good thing. And this is not a matter of a lesser evil, Bush v. Kerry decision (where I voted for neither) – the court and case are what they are in the environment they are in.
The optimal outcome for liberty may not be the optimal outcome in a pure sense. But we’ve departed so far from principle. One more boy pissing into a sewer won’t make it stink noticably worse. But one candle makes a big difference when it is the only light.
Published: June 24, 2005 1:07 PM
Published: June 24, 2005 1:58 PM
Also, as you point, most of these crimes could (and in fact, from a constitutional point of view should) be prosecuted under state law. So it would seem that the purpose of most of these laws was so that the Federal juggernaut could override state jurisdiction.
I seem to recall a case of a drug related murder in Massachusetts, where the Feds took jurisdiction so that the death penalty could be imposed, even though Massachusetts has no death penalty.
Furthermore, the chances of being convicted in Federal Court are very much higher than in a state court – the rules of evidence, particularly on pre-trial disclosure, are different, making it more difficult to mount an effective defense. In the event of conviction, the appeals process is streamlined so that the execution can be carried out much more quickly.
Unfortunately, states have bought into and accepted the notion that the Supreme Court is the final arbiter of the Constitution and its legal standards, and that these standards do apply to the states.
This would appear to be the crux of the matter. People look to the Supreme Court to adjudicate state legislation. People assume that the Bill of Rights not only limits what the Federal Government can do, but also, where applicable, applies the same limits to State Government. (As you correctly emphasize, the states are free to grant more rights.)
Published: June 24, 2005 5:03 PM
Published: June 25, 2005 10:51 AM
1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed, only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve the goal.
Housing is such a fact:
1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other ousing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between developers and politicians to use eminent domain to turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly tailored to achieve a compelling government purpose.
If the Kelo homeowners present this argument to the Court, they will save their housing.
See also Ryskamp, John Henry, “Kelo v. New London: Deciding the First Case Under the New Bill of Rights” . http://ssrn.com/abstract=562521
Published: June 25, 2005 1:46 PM
Published: June 25, 2005 1:49 PM
This is a situation loaded with the motivation for fraud and deceit, and this is just the transparent part of the transaction. Imagine what the individuals: the mayors, the council members, the clerks, etc., will be conjuring up behind the scenes.
The ultimate result will be rampant corruption and tragic consequences.
God help us!
Published: June 25, 2005 2:34 PM
Published: June 25, 2005 7:10 PM
When I first read your argument, the first thing I thought of was Justice Thomas’s dissent in Lawrence v. Texas — i.e., even though the law is “uncommonly silly,” there’s nothing in the Constitution granting the federal government jurisdiction. I was wondering if you saw his opinion in the same way.
Also, I was wondering if I understand you correctly: under your jurisprudence, do you believe the only cases over which the Supreme Court has jurisdiction are those against the federal government and those between states?
Published: June 26, 2005 8:06 PM
No, there are other times too. Federal question and diversity are two of the main areas, and there are some cases against states that it could hear–those clearly contemplated by the 14th Amendment, for example.
Published: June 26, 2005 9:36 PM
Successful people from here on out will only need to concern themselves with controlling city council. Bribe, blackmail, or kickback and any property can be yours. Hell, you won’t even have to do that. Just let it be known that you have pull at city hall, and you will never lack for friends or money.
Just a soul.
Published: June 27, 2005 11:08 AM