Back to the Bench, Andy

The Washington Post's "Bench Conference" blogger Andrew Cohen is sorely vexed by an "atrocious," "shrill" article on Kelo and eminent domain in Parade. Here's Cohen:

In some ways this hysteria isn't surprising given the reaction last year's big Supreme Court eminent domain ruling received from mainline journalists. The convention [sic] wisdom had it then (and has it now, unfortunately) that a group of judges had suddenly defiled the centuries-old notion that a man's home is his castle. The truth is much different. The Supreme Court in Kelo simply recognized that the State of Connecticut had made a series of legislative choices, spurred by aggressive lobbying from developers, that allowed local officials to take with just compensation private property and then turn the land over to private economic developers.

Likewise, the Ohio Supreme Court undertook a similiar analysis last month and came to a different conclusion: that state law restricted the ability of local officials to take private property for economic development. Two different states. Two different statutes. Two different results. Nothing outrageous or shocking or dismaying about that, right? [....] By whipping people into a frenzy of anger at judges and the big, bad "government," the Parade piece and others like it do a great disservice to people whose homes may be threatened by eminent domain. The fact is that the solution to eminent domain woes also can be found precisely where the problems lie-- at the State House.

Here are three phrases that appear nowhere in Cohen's 500 words of tongue-clucking: Fifth Amendment. Public Use. Takings Clause. It's as though someone had penned a long screed on the battle over sectarian prayer in public schools without acknowledging the existence of the Establishment Clause, then puzzled over why practitioners of some minority religion were taking the issue to the courts rather than their local government. (Perhaps Cohen just assumes state legislatures get to define "public use." I wonder if he feels the same way about "equal protection.") And painful though I know it must be for a Post staffer to slum in the pages of Parade, had Cohen read the article closely, he might have noticed that it does in fact discuss how "more than two dozen states introduced or passed legislation and constitutional amendments to stop what critics call 'eminent domain abuse.'"

So to recap: When someone does a sympathetic profile of families disposessed by eminent domain, exercised on behalf of private business, that's hysterical editorializing masquerading as journalism. The loftier standards of the Post, on the other hand. are no bar to discussing a legal dispute in a way that defines one side's actual legal argument out of existence. Perhaps Cohen just doesn't want to acknowledge that the Constitution protects unseemly economic freedoms alongside nobler ideals like freedom of the press—let alone soil himself with a grubby debate about their scope. But that's a shabby excuse for pretending it isn't so. [Cross-posted @ NftL]

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  • ||

    state legislatures get to define "public use."

    Shouldn't they? I mean, as long as it's not interstate commerce, shouldn't the fed stay out of it? (This has essentially been joe's argument, and although I'm not agreeing with it, it does have some merit.)

  • ||

    Shouldn't they? I mean, as long as it's not interstate commerce, shouldn't the fed stay out of it? (This has essentially been joe's argument, and although I'm not agreeing with it, it does have some merit.)

    Do state legislatures get to define "cruel and unusual?" How about "due process of law?"

  • fyodor||

    Russ 2000,

    Following up on AC's post, there's an amendment to the Constitution, though being almost as ignorant as you (bear in mind the correct meaning of "ignorant" and you'll see that's not an insult!) I don't know the number of it, that applies the Bill of Rights to states. So the feds (as in the federal courts) do have the Constitutional authority to be involved. Is misplaced federalism really joe's argument? I thought it was a more broad interpretation of public use.


    On another note, I like how Cohen dismisses what other people are saying and then essentially restates the same thing in different words when describing what "the truth" really is.

  • ||

    ...allowed local officials to take with just compensation private property and then turn the land over to private economic developers.

    I always get a kick out of the idea of "just compensation". ...according to whom?

    So to recap: When someone does a sympathetic profile of families disposessed by eminent domain, exercised on behalf of private business, that's hysterical editorializing masquerading as journalism.

    I wish taking commercial property for redevelopment struck the same chord with the public.

    ...and taking property for private redevelopment isn't the only arbitrary abuse I can think of--public uses can be just as arbitrary.

  • ||

    Yeah, I love this bit:

    "The truth is much different. The Supreme Court in Kelo simply recognized that the State of Connecticut had made a series of legislative choices, spurred by aggressive lobbying from developers,"

    So they "simply recognized" that a chain of events, which he describes as completely innocuous, occurred. Huh. Well, that's not how I saw it, and I didn't need Parade magazine to whip me up about either.

  • Larry A||

    What is wrong with the Parade article, and what is wrong with much of the debate over eminent domain in the wake of Kelo, is that it makes the "government" (undefined but of course sinister and ill-intended) into the Bogeyman instead of focusing attention upon the folks who really do dictate eminent domain laws at the state and local level. The folks who deserve all the wrath, if anyone does, are the legislators...

    From the Parade article's "What you can do:" Pester your state legislators now: Some states already have passed new rules that restrict eminent domain.

    There was a similar reaction last year when Congress passed legislation protecting firearm manufacturers and dealers from frivolous lawsuits. Somehow that came out of the media as pandering to an extremist position, when in fact 2/3rds of the state legislatures had, in just seven years, passed similar legislation. Now we see an issue that in less than a year has inspired over half of the 50 states to pass or consider bills, and the supporters get dismissed as "hysterical."

    What part of "by the people" does Cohen not understand?

  • Robert||

    I always get a kick out of the idea of "just compensation". ...according to whom?

    According to a judge or jury, same as in any torts case. If they can do it in the case of a car wreck, why not in case of a taking?

  • ||

    I mean, as long as it's not interstate commerce, shouldn't the fed stay out of it?

    Interstate commerce defines the reach of the feds regulatory authority. It does not define the reach of Consitutionally guaranteed rights.

  • ||

    This subject always gets me riled up.

    One thing I think would help change the federal government's mind (or at least the public's), is if just one of the home owners turned into Big Chuckie H. for just one moment and claimed:
    "From my cold, dead hands."

    Because if someone made the call, I would probably help them out.

  • ||

    According to a judge or jury, same as in any torts case. If they can do it in the case of a car wreck, why not in case of a taking?

    Cars have a reasonably well defined market value, and (except in very rare cases) they're not unique. That's in contrast to housing which is considered unique. That uniqueness is why courts enforce sales contracts rather than award damages for breech of contract.

    (will someone please feed the server squirrels? This is taking forever to post )

  • ||

    RC,

    That's the kind of answer I was looking for.


    fyodor,

    Not ignoring anything here. Federalism may or may not be joe's argument, but it's the only angle on which I could understand his support of the Kelo decision. He seemed pretty much against what New London was trying to do, but that the fed was the wrong venue on which to challenge them. Wasn't that basically the SCOTUS answer?

    As you said, the Bill of Rights applies to the states. But I've always felt eminent domain was sort of a grey area in regards to that because it could apply to the Feds not taking property except for public use, seeing that it is in the realm of commerce rather than protocol.

    One could argue that the wording is "nor shall private property be taken for public use" and that Kelo was more of a forced transfer of private property to another private party - the amendment says nothing about that. Sure it's a lame argument, but in a case law system, if you throw a lame argument against the wall enough times, it'll eventually stick once. And then it becomes precedent. I mean, I'm against the taking of private property even FOR public use, I just don't have any faith in language. And I kind of enjoy chaos and disorder, so 51 different definitions of "public use" just makes things more entertaining.

  • Tim Cavanaugh||

    By whipping people into a frenzy of anger at judges and the big, bad "government,"

    What's with the scare quotes around government? Was it actually the trilateral commission?

  • ||

    There can be no "just compensation" if the owner doesn't want to sell. That's what "priceless" mean. If a person doesn't want to sell, his property is "priceless," and no arbitrarily derived amount can equal "just compensation." I think it goes back to the subjective theory of value.

  • ||

    Freedom: It's a bitch.

  • ||

    Russ 2000,

    That's not my argument. I don't believe the states can define public use and way they want, and I do believe the Supreme Court can overturn states' takings using the Fifth Amendment.

    My argument is that the definintion of takings under the federal Constitution encompasses private-to-private, economic development takings if they further an established public purpose - just as that definition did in the 1700s and early 1800s, when land was commonly taken for mill ponds and private roads.

    States can define appropriate uses for takings more narrowly than the feds if they so choose, but they can't define them more broadly.

  • ||

    Ken Shultz,

    "I always get a kick out of the idea of "just compensation". ...according to whom?"

    The same people who define "cruel and unusual." The founders deliberately incporated principles that needed someone to define them, to allow changing norms to be reflected.

    mark, "That's what "priceless" mean. If a person doesn't want to sell, his property is "priceless," and no arbitrarily derived amount can equal "just compensation." I think it goes back to the subjective theory of value."

    Should I mention this to your Town Assessor the next time he updates the property tax roles?

    But seriously, in principle, you are correct - fair market value is not the real value of the property, just a best estimate.

  • ||

    A legitimate "definition of public use" challenge to a taking, one that is sufficiently grounded in history and established law, would acknowledge that Mill Act/Private Road type takings - transfer of property from one private party to another, so that the receiver can put it to a use that advances an established public purpose, like providing the grain-grinding services necessary to promote a region's development in the 1700s - have always been legal. This open the door for the argument that society has changed, and these types of takings are no longer considered a legitimate public use, as they were at the time the Constitution was written, or even during the period of big Urban Renewal. Because the Constitution is a Living Document, you see, our understanding of "public use" can't be stuck in 1789, and needs to reflect contemporary standards.

    Of course, the political activists behind the "eminent domain abuse" campaign would sooner knaw their own feet off than argue from this school of Constitutional law. Clarent Thomas walked right up to this line in his dissent, noting the difference between the perception of a corporation in 1789 and one today, but his Dead Document fetish wouldn't let him go all the way. Instead, he noodled around with some observations about the public-benefits regulations on grist mills, which would leave him arguing that such a mill was subject to significantly less public-benefit regulation than a modern restaurant, condo building, or property developer.

  • Paul||

    Shouldn't they? I mean, as long as it's not interstate commerce, shouldn't the fed stay out of it?

    Uhm no. The Fed doesn't 'stay out' of constitutional matters. The state stays out of (or should) areas not pertaining to constitutional issues. The feds don't stay out of freedom of speech or search and seizure or any other area where there is an explicit constitutional issue at hand.

    Joe:

    Mill acts be damned. What no one who supports the Kelo abortion will acknowledge, why such a lull in private to private transfers after the mill Acts?

    A finer legal mind than mine poses the question as thus:

    But if the public purpose/public benefit seeds were planted in the case law so early[with the mill acts], then the question is not why state legislatures have gone so hog wild lately, passing condemnation statutes premised on nothing more than revitalizing a depressed downtown, but what kept them from going hog wild much earlier?

    Whole thing here.

  • ||

    Let's review the statement in question:

    "The Supreme Court in Kelo simply recognized that the State of Connecticut had made a series of legislative choices, spurred by aggressive lobbying from developers, that allowed local officials to take with just compensation private property and then turn the land over to private economic developers." (Bold Added)

    Isn't the author making a personal judgement about the value of the property in question?

    This concept comes up in other contexts all the freaking time. Have you ever heard of government taking somebody's land (say, 'cause it's got some kind of grass on it) and deciding ahead of time how much they'll give any owner for land so affected?

    ...If and when they do that, and they say that's "just compensation" do you imagine they're saying that the compensation itself was just as in fairly priced, or do you understand them to mean that the process itself was "just" as in legal?

  • ||

    ...allowed local officials to take with just compensation private property and then turn the land over to private economic developers.

    Becouse we all know developers and especially private developers are EVIL...

    anyway I am a developer and i know lots of developers and we are all opposed to the kelo dissision...

    well sort of becouse the stupidity of the kelo dessision has spured a larger interust in property rights.
    This is sort of like hopeing the dems to take back congress this year just so they can fuck things up so badly that they will never come back to power again.

  • ||

    Paul,

    Lull? Er, um, there's that whole railroad thingie.

    I'll make sure and read that link, though. At this point, it's gratifying to be angrily confronted by someone with an argument more sophisticated than 'Duh, what part of "public use" don't you understand?'

  • Robert||

    There can be no "just compensation" if the owner doesn't want to sell. That's what "priceless" mean. If a person doesn't want to sell, his property is "priceless," and no arbitrarily derived amount can equal "just compensation." I think it goes back to the subjective theory of value.
    So when someone damages your property, no court should award you any compensation.

  • ||

    So when someone damages your property, no court should award you any compensation.

    We're not talking about someone damaging property. We're talking about the government taking property. ...and what constitutes "just compensation".

    ...and I was talking about whether Cohen used the language of the Constitution to express his personal opinion as to the value of the land (or houses).

    On a related topic, joe, ever see a project approved on the condition that the developer devote a certain portion of land to, say, park use? In such a case, shouldn't the developer receive "just compensation" for that land?

  • ||

    fyodor, joe, et al,

    To absolve myself of accused ignorance, it is the 14th amendment which applies the 5th amendment to the states.

    Except that we're talking about an 1860's amendment which comes long after Mill Acts/Private Road takings had already been well established by the individual states. (And that interpretation wasn't even cited in court decisions until Gitlow in 1925 which ironically upheld New York limiting speech.) And this of course is well after grist mills were no longer the focus of mill acts (mills which affected property owners were likely to use anyway) and general manufacturing mills which property owners were likely NOT to use had then become part of the acts. It's at that point that "public use" became "public purpose" - whereby "public" means "anybody" and "purpose" means "any direct or indirect benefit".

    In effect the states defined public use any way they wanted prior to the passage of the 14th, and citing anything prior to that as precedence is basically making the 5th's takings clause so broad to cover all those precedents as to have no meaning. The SCOTUS said as much in the Kelo decision: "this 'Court long ago rejected any literal requirement that condemned property be put into use for the ... public.' Rather, it has embraced the broader and more natural interpretation of public use as 'public purpose.'... Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power."

    So saying something like "States can define appropriate uses for takings more narrowly than the feds if they so choose, but they can't define them more broadly" is completely devoid of meaning as one can't define it any more broadly than SCOTUS already defines it, and if somehow one can define it more broadly the SCOTUS will go along with it.

    Justice Gray argued that the mills weren't taking anything as dikes and levees could protect the land from being flooded. He didn't address the question of "who pays?" but at least it leaves open the possibility that the Mill Acts aren't even worth considering as eminent domain takings.

  • ||

    Ken Shultz,

    You haven't had anything taken if your property is permitted for a big project that is just a little smaller than you'd like. Whether this difference between the dreamed-of project and the permitted project is based on building height, uses, or land coverage doesn't make a difference.

    Look at it this way: say you get a project for 150 townhouses permitted, and the site plan includes some open space that you're not allowed to build on. Compare that to a project in which the 150 townhouses are evenly scattered across the parcel, so there is no open space left. Nothing has been taken.

    If the project you permitted was not by right, and the board granted you a permit to build 150 townhouses, they haven't taken anything from you with their action; they granted you a permit that vastly expanded both the economic value and development potential of the your land. That portion that's going to become a park? You never "owned" the right to develop there anyway, so it wasn't taken from you.

  • ||

    Russ 2000,

    'It's at that point that "public use" became "public purpose"'

    I disagree. The taking of the land for the mill ponds was done for a public purpose. Remember, the farmers were did not have the right to go onto the flooded land, nor draw water from it, nor use it to power their own mills. In no sense did the public have use of the land under the mill pond. However, the use to which the miller put that taken land served a public purpose.

    The farmers had the right to use the mill, to both occupy that land (by walking into the mill) and to avail themselves of its functions, but the Mill Acts didn't allow land to be taken for the construction of the mill that the public used.

  • Paul||

    Paul,

    Lull? Er, um, there's that whole railroad thingie.

    I'll make sure and read that link, though. At this point, it's gratifying to be angrily confronted by someone with an argument more sophisticated than 'Duh, what part of "public use" don't you understand?'

    Please do read the link, because attention to the 'railroad' question is paid. What this article does is look at why there were the mill act and railraod takings and a long period before municipalities started bulldozing thriving neighborhoods to make way for a starbucks, health club and hotel. The article explores why it took so long for cities to figure out they they might use ED to take whatever they wanted FOR whoever they wanted-- instead of the more careful (although setting the modern stage) mill and railroad takings.

    I agree that the Mill takings and railraod takings set a bad precedent But at least there was some semblence of restraint in those takings. Ie, the object of the taking was always a mill and a railroad- things which at the time had special and specific relationship to the economies of the time-- unlike the willy-nilly takings of modern times. But now I'm trying to duplicate what the article says- so I'll let you read it.

    Oh, and I'm not sure if you were directing your comments to me specifically. Because I'm not 'angrily' confronting you.

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