Ry Cooder and Kelo v. New London

Nick Gillespie | June 23, 2005

On the heels of today's horrible decision in Kelo v. New London, check out this appreciation of Ry Cooder's recent album in the Christian Science Monitor.

Among other themes, Cooder's Chavez Ravine deals with the late '50s eminent domain rulings that cleared the way for Dodger Stadium in Los Angeles (ironically, a facility built mostly with private funds).

"Los Angeles is the home of eminent-domain abuse, and poor people are the ones who get moved around," opines Cooder. "If [the Supreme Court justices] come down in favor of the rights of citizens, it would be amazing."

He got that right. But what does he think of Castro's eminent domain policy?

Comments

|6.23.05 @ 3:58PM|#

I just heard about this. Unbelievable, isn't it? Clearly any and all leftists who support these eminent domain travesties are supremely hypocritical, putting the lie to their anything-in-the-name-of-the-poor claptrap. They've got no business calling themselves liberal, no business calling themselves American, to put it bluntly.

And now the part where most everyone here will disagree with me:

This is exactly the type of case that makes me greatly prefer conservative judges/judicial nominees, for at least they retain some meager vestige of strict constructivism/respect for private property within their intellectual canon.

Alla|6.23.05 @ 4:06PM|#

The Kelo v. New London decision is disgusting. But why does everyone keep emphasizing how it hurts the poor? Government abuse is a threat to everyone.
I get the impression that some criticisms are saying that if the court had ruled in favor of the government seizing land from the rich to give to the poor it would be ok.

Scott Ferguson|6.23.05 @ 4:10PM|#

Lest we forget, Detroit's Mayor Coleman Young, who ran the city like a sub-Saharan dictatorship for many years, cleared away a Polish neighborhood near Hamtramck -- presumably one that never voted for him -- for a GM assembly plant.

|6.23.05 @ 4:19PM|#

Hey Geophile: I take your point abt conservative judges on this one, but who's gonna nominate conservative judges? Oh right, those flag-protecting republicans. Yep, not a single hypocrite on that side of the fence.

|6.23.05 @ 4:27PM|#

Geophile,

This leftie endorses the decision (mostly, with a few reservations), but deplores the underlying plan.

It's sort of a Barry Goldwater/Civil Rights Act kind of thing. Dig?

|6.23.05 @ 4:56PM|#

Ahhhh Ry Cooder. Nice to see him (sort of) speak out against government abuse, but I'll betcha anything, he blames capitalism/US (or the idiotic Cuban embargo) for the former "underappreciation" of Buena Vista Club musicians.

Cripes, don't forget that it was the Cubans themselves who abandoned them, and that good ole whitey Cooder came to the rescue. I dunno, maybe, if like, the Cubans had a chance to earn a spot of money to spend on music, Buena Vista guys would be a little more appreciated.

Ironic (well, actually, predictable) that (communist) musicians had to be exposed to(capitalist) consumers to reach any degree of success.

Huge Ibrahim Ferrar, Ruben Gonzalez fan here, btw. Sigh. Imagine how many more Cuban musicians we could enjoy, only if Cubans didn't have to live in that economy. (and I fully acknowledge the fruitlessness of the embargo)

|6.23.05 @ 4:58PM|#

But why does everyone keep emphasizing how it hurts the poor? Government abuse is a threat to everyone.

Agreed. But I do think there are 2 very defensible reasons for emphasizing harm to the poor:

1) Since a lot of bad government policies affect the poor more than the rich, it illustrates government's perverse knack for creating as much misery as possible.

2) If bad policies always help the same "good old boys" it points out the hypocrisy of policies that are allegedly for "the greater good."

|6.23.05 @ 5:08PM|#

I bought the new Ry Cooder CD last week and was entirely underwhelmed; it only served to remind me how good his last record (with Cuban guitarist Manuel Galban) was. But his sense of timing is uncanny, is it not?

|6.23.05 @ 5:13PM|#

Not to mention:

3) Tons of government abuses are justified in terms of helping the poor, and often when you criticize them, you're accused of being a shill for the rich.

|6.23.05 @ 5:15PM|#

And liberals bash libertarians for "not caring" about the poor. Well, here's a pretty pristine example of government being used to enrich the rich at the expense of the poor, and there are no libertarians around to blame, not even conservatives who ape a part of our philosophy. Just liberals unabashedly pulling a Huffington and giving a voice to the already-voiced.

Typically they're trying to end-run the individual case and suggesting that if only we had the *right* wolves, the sheep wouldn't come up on the menu. In other words, they can think of few government powers whose potential for abuse is great enough to warrant banning them because they have conquered the knowledge problem and if we'll just elect them, it'll be manna for everyone--and in the meantime if a few sheep have to be sacrificed so the right wolf can bring about the manna when he gets in, well, you can't make mutton without killing a few sheep.

In other news, "eating manna" has found to be, stare decisis, equivalent to "eating mutton." But don't worry. It won't be abused enough to warrant banning mutton-eating.

|6.23.05 @ 5:17PM|#

Sandy-

Not to mention that manna and mutton are both interstate commerce!

Alla|6.23.05 @ 5:27PM|#

Thoreau,

I agree with your points; yet, I still think the outrage over the decision should not be who it's affecting but that's encroaching upon our rights.

But to extend your point: the government screws the poor when there's money to be had from the rich, and screws the rich when politicans are looking to attract the populous vote. And somehow, every attempt to biasedly screw one side over just turns into all around misery.

|6.23.05 @ 5:38PM|#

My new goal in life is to find out where Souter, Kennedy, Ginsburg, and the other two yes votes (whatever and whoever or something) live and petition the city council in DC (or a local council in MD or VA, if it turns out they live there) to seize their homes. Deed one to a medical-marijuana dispensary, one to a chapter of the Federalist Society and one to IJ (not that either would take it), one could be turned into a smokers-only bar, and the last could be a crash pad for posh crackheads. (Try repeating those last 5 words 4 times fast. Yeah -- I didn't think so.)

|6.23.05 @ 5:42PM|#

I never thought a SCOTUS decision would bring tears to my eyes, but this one did. I had great hopes that this case would end a great injustice. Instead, it upheld it. The evils of humanity, great and small, seem neverending.

Eric|6.23.05 @ 5:57PM|#

First, the Founding Fathers of the US, and most who are not statists today, consider property rights to be the bedrock of liberty and freedom. In fact, a significant portion of the American Revolution was because of property rights issues (taxation is a property rights issue, so is quartering troops in private homes and warrantless search and seizure, all things that happened under British tyranny). So, this decision is a huge blow to your liberty in this country.

Secondarily, it is a decision which favors specific groups of people more than others (I'm sure Donald Trump is fairly pleased) and will hurt the poor much more than the wealthy. The point of rule of law is that all citizens are equally protected. The reality of this decision is that city councils will make decisions favoring real estate developers rather than home owners (a shopping mall is much more lucrative for property taxes than the homes occupying that land).

Here's commentary on why Originalism is crucial to protecting our liberties.

Here's a roundup from the libertarian wing of the blogosphere.

Eric|6.23.05 @ 5:58PM|#

First, the Founding Fathers of the US, and most who are not statists today, consider property rights to be the bedrock of liberty and freedom. In fact, a significant portion of the American Revolution was because of property rights issues (taxation is a property rights issue, so is quartering troops in private homes and warrantless search and seizure, all things that happened under British tyranny). So, this decision is a huge blow to your liberty in this country.

Secondarily, it is a decision which favors specific groups of people more than others (I'm sure Donald Trump is fairly pleased) and will hurt the poor much more than the wealthy. The point of rule of law is that all citizens are equally protected. The reality of this decision is that city councils will make decisions favoring real estate developers rather than home owners (a shopping mall is much more lucrative for property taxes than the homes occupying that land).

Here's commentary on why Originalism is crucial to protecting our liberties.

Here's a roundup from the libertarian wing of the blogosphere.

It should be noted that the 5 justices who made this decision are the ones that everyone considers "liberal". Hmmmmmmm

Ashish Hanwadikar|6.23.05 @ 6:15PM|#

Eminent Domain abuse

G. Hamid|6.23.05 @ 6:15PM|#

U.S. Constitution. RIP

|6.23.05 @ 6:52PM|#

Who else understands what this extraordinary "takings" aggrandizement will do to mortgage markets? Does no-one see that incentives to "local government" confiscation of private real property at (by definition) below-market rates endangers lenders' security?

Eighteen months from now, home buyers will be required to post substantial bonds, in escrow, to cover the eventuality that a bank's investment will be sold-off --in effect, foreclosed-- willy-nilly at huge discount, outside all contractural agreements, by some smirking local satrap as the erstwhile property-holder's equity falls to less than zero (meaning that he retains an unfunded mortgage liability). Will Fannie Mae and Freddie Mac rejoice as the bottom falls out of today's inflated housing market?

Sensible Representatives in House and Senate ought to be more than just concerned at this genuinely stupid ruling, which is going to take down the housing market, and with it the American economy, just in time for Election Day 2006. "Property" is not a legal fiction; "property rights" are not mere counters in some sophist game. Most people's "wealth effect" ties directly to residential valuations, and --trust me-- the confidence-damage that our cavalier judiciary has inflicted is going to prove very serious, very fast, unless someone with a little common sense and political awarenes acts RIGHT NOW.

This goes beyond "bad law". If Republican majorities in both House and Senate fail to recognize a looming economic catastrophe, and act accordingly, they can kiss Peace and Prosperity good-bye-- and their careers with 'em.

|6.23.05 @ 8:34PM|#

John, I'm pretty sure the mortgage market isn't going to do that. Those cases of canned beef from Y2K are still going to be in your basement in five years.

Sandy, "Just liberals unabashedly pulling a Huffington and giving a voice to the already-voiced." Actually, all the liberals blogs are as outraged as the conservative blogs. And their outrage is just as earnest, poorly focused, and good-hearted as that around here.

I wish this issue was as easily defined, and the solution as straightforward, as the people complaining about it perceive. That this was just about a single bad ruling, or even a string of rulings, that do violence to the Constitution. There'd be a simple way out if it was.

The majority was absolutely right to say that there needs to be a political process to grapple with this problem. We're in a pickle here.

Eric|6.23.05 @ 8:53PM|#

Sorry joe, the tradition and precedent, since 1798, has always been that the government can take to use for public use (i.e. government business, schools, roads, etc.) but could not take from private entity A and give to private entity B. By upholding New London's decision, the court just stood 200 years of constitutional law on its head.

|6.23.05 @ 9:22PM|#

Eric, you've got to be freaking kidding me.

I heard this crazy rumor that there has actually been a body of law developed since 1798.

I can't believe you would actually make such a juvenile argument.

geoff|6.23.05 @ 10:15PM|#

Clearly any and all leftists who support these eminent domain travesties are supremely hypocritical ...

This liberal thinks the decision was a travesty.

|6.23.05 @ 10:31PM|#

Ah the irony,

For a short time, until I became totally disgusted by the hypocricy, I was a consultant on the development team for a project about a half mile from this New London site, which was also part of the New London Redevelopment Authority jurisdiction. Before a single shovel hit the ground, the developers had negotiated all sorts of city investments in infrastructure as well as a decade long tax holiday for the project, not to mention being essentially given the land for free.

The Supremes have been totally blind to reality on this one.

Fred

|6.23.05 @ 11:44PM|#

joe--

Which blogs? I predicted elsewhere that it would be ignored by TPM, Kos, and Yglesias, and so far I've been right. I left out Atrios, and I see he finally picked it up. Good for him. But one out of four is hardly a hue and cry.

And by "voice to the already-voiced" I was analogizing to giving advantages to the advantaged, or giving money to the rich, as is the specific incidence in this case (and is now common in takings cases). Sorry if that wasn't clear.

You can see how after railing at conservatives for corporate welfare and tax breaks for the rich (and, from some, smearing libertarians with the same broad brush), it's at the very least bad PR that liberals aren't decrying this more vociferously. Asking the Court for a definition of what is an unconstitutionally broad interpretation of "public use" or even "public purpose" is not really going to turn all common law precedent on its head, especially because there is precedent elsewhere for limiting otherwise-allowed bahavior by governments (unconstitutionally vague is a phrase that gets bandied about, for example).

I'm also continually amazed that Bush hasn't taught you guys in spades the folly of giving tools to government that may be weilded by theocratic freaks. What abuses will you put up with before you decide that there's no consistent way to elect anyone selfless enough to not abuse a given power? I'd have thought by now your first thought when suggesting a new government power would be, "What would Jesse Helms do with this?"

Or are we just going to have to mount a recall election every time a developer buys off a local board? We're going to have a new election every other week.

|6.24.05 @ 1:17AM|#

As has been suggested in a few places, the fun will really start when when localities start commissioning studies to say the local strip club, feminist bookstore, gun club, biotech lab, abortion clinic, or Wal-Mart could be beneficially replaced with something else...

Can't drive them out? Take their land - or their landlord's land. (Heck, you'd probably just have to commission the study to scare the landlord into terminating the lease, much of the time.)

|6.24.05 @ 8:30AM|#

You folks might want to look at this:

http://www.abanet.org/rppt/publications/magazine/2003/nd/ely.html

for a good history of the judicial interpretations
of the Takings Clause. It's not as straight-forward as some might think.

|6.24.05 @ 9:37AM|#

The majority was absolutely right to say that there needs to be a political process to grapple with this problem. We're in a pickle here.

It's only a problem because governments (and connected developers) made up the problem - they want property and they don't want pay over a certain amount so they use the court system instead. The political process created the problem.

|6.24.05 @ 9:59AM|#

These local governments should be made to enter into a contract with the afflicted homeowners, specifying that if the politicians' promises of milk and honey don't pan out they must pay the homeowners an incompetence penalty.

|6.24.05 @ 10:23AM|#

Ah, finally found them.

Looks like Kos and Yglesias have joined Atrios in...defending the decision.

Not coincidentally, I heard the first right-winger suggest that a good use for this power is to get rid of Planned Parenthood offices and abortion clinics.

Have a good time fighting that in your county and city councils.

|6.24.05 @ 10:43AM|#

Just a question for joe - will you be standing up and cheering when a mall developer decides to build a new Nordstroms where your house used to be?

|6.24.05 @ 4:23PM|#

I don't know if it's a consequence of confusion or bad faith, but there's a major minconception being peddled here.

The court did not rule that the "public use" clause is satisfied if the post-takings use makes more money than the pre-takings uses. The court ruled that the clause is satisfied if the takings are carried out as part of a comprehensive redevelopment plan, adopted by the city and aimed at addressing legitimate public policy goals. Taking Justice O'Connor's house to build a McDonald's, on the grounds that McDonald's would pay more taxes and employ more people, would not pass the test.

The ballgame here is about the plans - whether the plan behind the taking represents good faith, or whether it is a fig leaf for what is really a private taking; and whether the assumptions and public process and goals behind the community's redevelopment plan are reality-based, likely to succeed in achieving the public ends, and meet certain standards.

Fred is absolutely right, and plans like this should not have to answer only to a "great deference" judicial standard.

|6.24.05 @ 4:51PM|#

joe,

What standards other than cost-benefit apply? I mean, if cost-benefit were simply capital investment versus capital gain, the standard is easy to apply. But when abstract concepts like quality of life get thrown into the benefit side, it gets damn-near impossible to figure out. If you can ensure that redevelopment authorities will be immune from influence peddling when constructing their plans, you have a valid point. But that's not reality-based.

|6.24.05 @ 10:28PM|#

The Kelo vs New London decision is a recipe for corruption.
A well financed corporation or developer wants the "develop" the land owned by unorganized, middle-class individuals. And who would decide if this development would proceed, a group of underpaid government officials. How do you spell payoff?

And if you think that it couldn't happen here: there was a sting done here (Arizona) by local law enforcement to offer bribes to city, county, and state officials. For a payoff, the officals would vote for a dog racing business (fictitious of course). They all took the bribe (I think there were 12 or so). The lead investigator said that they could have gotten many more.

|6.25.05 @ 2:45PM|#

The Kelo homeowners can petition the Court for a rehearing "on the merits" (Rule 44). The Court will grant rehearings to consider "historical evidence" bearing on the Framers' intent. Reid v. Covert, 352 U.S. 901(1956). The Kelo case is based on the Fifth Amendment. When James Madison presented it to Congress, he said that it "prevents every assumption of power in the legislative or executive." When he said "every," he meant a fact of the individual. A fact of the individual is a fact of human experience which does not change even when government seeks to destroy it. A fact of the individual is one in which government
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

|6.25.05 @ 7:15PM|#

Russ D,

I think you misunderstood - it's not about cost/benefit. Otherwise, taking O'Connor's house for a McDonald's just because Mickie D's makes more money would pass the test.

But my answer is "I don't know." There needs to be somebody judging the plan other than the people who passed it. While there is an obvious solution - all plans involving takings must receive the imprimatur of the Committee of Joe - I don't think that's politically palatable.

You can't insure plans are free from corruption, but what you can do is review the plan itself, and measure it against a set of standards.

|6.26.05 @ 2:27PM|#

Sandy wrote:

"Looks like Kos and Yglesias have joined Atrios in...defending the decision. "

Kos has said nothing - Armando, a featured bloggist, wrote a diary favor of the decision. He has collected 500 replies at this point. i would estimate 95 % of them disagree with him, often vehemently.

|6.27.05 @ 9:39AM|#

One must consider the over-riding potential for abuse. The scenario goes like this (repeat all over America): Deep pocket developer/corporation bribes/influences local-yocal officials elected to two year terms on planning commission. Result? Plan approved; multi generational farmland/homesteads paved over for strip malls. Think this scenario might possibly play out now that the Supreme Court has given their green light invitation to corporations and developers driven by short term return rather than stewardship of the land? Yeah, me too.