A Man's Home Is…Another Guy's Parking Lot

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The Supreme Court has agreed to hear a challenge to eminent domain abuse in New London, Connecticut. The Institute for Justice, which represents the property owners, says the case squarely poses the question of whether taking land from one private party and giving it to another constitutes a "public use" simply because the transfer will result in higher tax revenue and more jobs. "If jobs and taxes can be a justification for taking someone's home or business," notes I.J. litigator Dana Berliner, "then no property in America is safe because anyone's home can create more jobs if it is replaced by a business and any small business can generate greater taxes if replaced by a bigger one."

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  1. A stable neighborhood that working people can afford to live in is a precious commondity. If you take care of your neighborhoods, make sure the city is a place where people want to live, and allow businesses to scatter themselves in and amongst homes naturally, your job and tax bases issues will take care of themselves.

    Have you ever heard that old chestnut, “Make no little plans, for they have no magic to move the hearts of men?” Fuck that shit. Small is beautiful, and tearing down small, diverse, and intimate in order to replace it with huge and monotonous is a bad idea. Even if the city gets its way, the outcome will be a less desireable place, with fewer people committed to protecting and promoting it.

    They’ve got a treasure, and they’re pissing it away. If the city loses, in 30 years they’ll be saying “Thank God we lost!”

  2. Listen up, Justices, you better rule in my favor or you’re fired!

    What do you mean I can’t fire Supreme Court Justices? I can fire anyone! In fact, just for saying I can’t fire them I’m going to fire you!

  3. I think IJ has a good shot at this. If they win, I think hands down this would have to be the most significant success in promoting the libertarian cause since – well, I don’t know what would even compare. Welfare reform?

    In any event, if they win, we should all throw cash at them in the way of donations. I pledge right here and now to do an earnest calculation of every charitable dollar I can come up with, and give it to IJ, after deducting the cost of Reason Magazine of course, if they win. I normally have 2nd Amendment donations, policy donations, and charity donations every year. IJ gets every spare cent I can scrape up if they get a favorable Supreme Court ruling.

    Anybody else out there willing to go off the deep end with me?

  4. Jason-

    I pledge $50 if IJ wins this case. Next year, when I’m no longer a student, I’ll pledge more.

  5. Next year, when I’m no longer a student, I’ll pledge more.

    The intelligent man is always a student.

  6. Why wait to see if they win? I sent them a check last week. It’ll be a special day to see the CT Supreme Court get bitch-slapped over their absurd decision.

  7. What joe said brought a tear to me eye, but this is not the best issue for persuading the hoi polloi of the wisdom of anarchy. The reason is it is trying to help people having the appearance of being too “greedy” in what they are asking for their property.

  8. Jason, how about, “…since they won a nearly identical case a couple months ago?” Remember, when the Michigan court overturned Poletown?

  9. But joe: It’s the Supremes, baby!

  10. It was the New London Development Corporation, working for Pfizer, that was seeking to grab all the property in New London.

    I hope this support against eminent domain stems from true belief in Property Rights, not knee-jerk anti-corporatism.

  11. Joe, I concur, but I doubt anybody will have regrets. Case in point, the City of Anaheim completely destroyed their entire downtown 30 years ago. Today there are still weed infested undeveloped lots all over what used to be downtown. Nobody in city government is saying ‘gee, wish we hadn’t done that’.

    As an aside, IJ is top drawer in my book. Unlike most of the other outfits that we libertarians tend to align ourselves with (who agree with us on one or two issues) IJ will be standing tall when the Night of the Long Knives decends.

  12. How would liberals/progressives react if the government was using eminent domain to tear down a house that existed on a piece of land inhabited by newly-on the endangered species list Horned-Spotted-Whatever?

    A house that existed for 100 years on, say, the last piece of wetlands in the state of New Jersey?

    A house that takes up 4 acres of land in a downtown (but relatively rundown) area, where there is a “crisis” over affordable housing, and HUD wants to build high density housing there?

    I wouldn’t expect too much opposition against eminent domain then.

  13. The notion that “a greater private use” can be repackaged as “a public use” is to destroy the distinction between public and private. Who exactly will get to decide whether a “net economic benefit” is positive or negative? To whom? By what metrics? Over what geographic area? Over what period of time? A fundamental Constitutional protection devolves into the Politics of Pull and the Jurisprudence of “Size Matters.”

  14. A KC suburb just voted NOT to condemn two tracts of private property in order for a developer to build a golf course and homes on the land. The developer had reached agreements to buy the land of all but two holdouts (who together held about 1/3 of the total land they wanted to use).

    In a statement revealing his supreme arrogance, the developer, according to the article, claimed that the city council lacked “the political backbone or vision to take on the project.”

    A city council votes not to condemn land owned by a woman whose family has held it for 120 years, and continues to farm part of it, and the guy who wants to take it calls the city council a bunch of shortsighted cowards.

    http://www.kansascity.com/mld/kansascity/news/9777269.htm

    Bugmenot registration bypass (if necessary – my browser’s on autopilot)
    lala@mailinator.com
    lalala

  15. Voiceover, I’m sure you’d agree that a city has the right to take land to build a sewage treatment plant, or other necessary public utility.

    So, if the job of retaining stormwater and recharging an aquifer is being done for free by Mother Nature, rather than at great expense by a big old pump station, why would taking the land for the public use of managing wastewater (in the wetland case) be any less legitimate?

    Wildlife sanctuaries, parks, public housing, and facilities for water and wastewater management are all public uses. I suspect progressives, and anyone who isn’t a moonbat “more constitutional than the Constitution” type would judge the proposals on the merits.

  16. I’ve been wondering for some time if the IJ has the moral and intellectual wherewithal to become the truly libertarian answer to the ACLU. If they win this, they get my ACLU donations from here on out.

  17. Alright, I’m in for fifty. And I’m going to be a student for at least THREE more years (with some hopefully profitable co-ops mixed in there).

  18. Unfortunately, the court is going to have to completely overturn current case law if it is going to come down on the homeowner’s side here, which makes it a long shot. But then again, they probably took the case for a reason, and maybe that reason is to drastically change current law.

  19. Unfortunately, the court is going to have to completely overturn current case law if it is going to come down on the homeowner’s side here, which makes it a long shot. But then again, they probably took the case for a reason, and maybe that reason is to drastically change current law.

  20. Grant-

    What do you mean by “moral and intellectual wherewithal to become the truly libertarian answer to the ACLU”?

    If you mean the ability to grow in size and clout until they are comparable to the ACLU then I hope that happens.

    If, on the other hand, you mean the moral and intellectual courage to become more radical (“truly libertarian”) then I hope you’re wrong. IJ is out there slaying the slayable dragons right now. They are showing the benefits of economic liberty to audiences that have tended to support Democrats. Hence they tend to take on cases defending small businesses, minority-owned businesses, homeowners fighting eminent domain, and urban issues.

    I hope they continue to tackle issues where economic liberty enjoys the broadest appeal, even if it means that they don’t always tackle the issues nearest and dearest to die-hard libertarians.

    Finally, I really do think that the LP could start spoiling Democrats in significant numbers if LP candidates ran on platforms that combine the best of the IJ and ACLU.

  21. Voice Over,

    I’m not sure if this is a liberal/progressive vs. conservative issue. It’s more a town/municipality vs. individuals issue, it seems. Towns want the big projects, they want the pricey development, they want the tax revenues.

    I think I’ve talked about it here before, but, imo, the use of eminent domain for auxiliary benefits, such as stormwater treatment, groundwater replenishment, sewage treatment, or other use that can be moved elsewhere, is dubious. Roadways I’m still mostly on the side of the taking, knowing what I do about the actual design of the roads and the pains I personally take to avoid taking property from unwilling folks (the agencies in my experience take great pains to avoid unwilling sellers, since condemnation is a big hassle, but I can’t speak for all over the country). Just because it’s a public good doesn’t mean it has to go right there. Most things can be moved to locations with willing sellers.

  22. This is a nail biter. I was certain the SCOTUS would rid us of the obscenity of campaign finance reform. Boy was I wrong, and how.

    If we win, it means the end of a very bleak era in the annals of American property rights. If we loose? god, it’s just too depressing to think about. This is HUGE.

  23. “This ever-growing ascendency of government over private property and over free enterprise is no respecter of persons and cannot long be harnessed by those who expect to use it for private ends. As governmental ascendency is increasingly sanctioned by the constitutional law of our State, private capital is less likely to be invested to develop the Port of New York and more likely to fold its tents and silently move toward other State where government competition and expropriation are more restricted. . . .

    Disregard of the constitutional protection of private property and stigmatization of the small or not so small entrepreneur as standing in the way of progress has everywhere characterized the advance of collectivism. To hold a purpose to be public merely for the reason that it is invoked by a public body to serve its ideas of the public good, it seems to me, can be done only on the assumption that we have passed the point of no return, that the trade, commerce and manufacture of our principal cities can be conducted by private enterprise only on a diminishing scale and that private capital should progressively be displaced by public capital which should increasingly take over. The economic and geographical advantages of the City of New York have withstood a great deal of attrition and can probably withstand more, but there is a limit beyond which socialization cannot be carried without destruction of the constitutional bases of private ownership and enterprise. It seems to me to be the part of courts to enforce the constitutional rights of property which are involved here.”

    –Courtesy Sandwich Shop v. Port of New York Auth., 190 N.E.2d 402, 411 (N.Y. 1963) (Van Voorhis, J. dissenting).

  24. Eminent domain sucks. “Public use” arguments are canards. If public use is such a moral good, then why don’t we invade Canada? They have shitloads of natural resource that could be put to the public use of Americans. Public use reminds me of Hitler’s Lebensraum. (Oh, oh! This thread’s in trouble. I just brought up Hitler!)

  25. “If we win, it means the end of a very bleak era in the annals of American property rights. If we loose? god, it’s just too depressing to think about. This is HUGE.”

    Exactly. When I saw the article in this morning’s paper, part of me went “woo hoo!” and part of me went “uh oh…” The stakes in this are incredibly high, and since it’s well nigh impossible to predict a Supreme Court ruling (no matter how “right” you think your side is), it’s a crap shoot.

  26. Tourist: It only takes four justices to agree to hear a case.

    My prediction is that the court’s decision will actually disappoint both sides–it will be very narrow, thanks to O’Connor breaking what would otherwise be a 4-4 tie…

  27. Uh, unless they want to over-ride old SCOTUS decisions, they will have to take a very narrow look at this case. Perhaps only ruling that increased tax revenues is not a public need / purpose as opposed to restoring blighted neighborhoods. In Berman v. Parker (I think the first case dealing with the transfer of private property to private entity using eminent domain) the court states:
    This Court cannot say that public ownership is the sole method of promoting the public purposes of a community redevelopment project, and it is not beyond the power of Congress to utilize an agency of private enterprise for this purpose, or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project.
    &
    Once the public purpose is established, the amount and character of the land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislature.

  28. Joe:

    “I’m sure you’d agree that a city has the right to take land to build a sewage treatment plant, or other necessary public utility.”

    I would not agree. Apparently you believe the government owns the property in the first place, but should only be allowed to take private propery when it fulfills some popularly agreed upon “public purpose.”

  29. Um, matt, was there a typo in there somewhere? If the government “owns the property in the first place,” it wouldn’t have pay fair market value to take it.

    E-rock, the case will almost certainly be decided on the narrow grounds you describe. Recall the recent case in the midwest, in which a similar large taking was voided because the neighbohood wasn’t actually voided. IJ didn’t even bother trying to argue that taking property to remedy blight is out of bounds, just that the blight designation was being abused.

  30. Consider…

    For road widening projects, it used to be common to take just the 10 feet of an owner’s front yard that was needed for the project. Now, this could dramatically lower the value of the property, because what used to be a house set 15′ back from a two lane road is now a house set 5′ back from a four lane road. But the government was only compelled to pay the fair market value for the strip of land it took – say 1000 square feet of unbuildable land. Very cheap, and doesn’t even come close to properly compensating the owner for his loss.

    So they E.D. procedures were amended, requiring that the government take the entire property, and pay the value for the entire property. (Of course, if the owner wanted to, he could arrange to sell just the strip they needed without a condemnation, but if no deal could be made, the government had to take the entire property.)

    Under the extremist critique of takings being presented here, the government would have to own that house forever, and could never sell it off to a willing owner. Bottom line, defining E.D. abuse by whether the ultimate owner is public or private is too simplistic. This is why the IJ doesn’t argue such a thing in these cases.

  31. Walter Williams’ latest column is this topic.

  32. Hello? Comments, are you there?

  33. This abuse of eminent domain to promote “best and highest use” goes back to the early nineteenth century. It’s just part of a much larger revision of property law. In the nineteenth century, activist judges drastically changed the common law to promote economic development at the expense of recalcitrant property owners. In riparian property law, for example, the old rights of priority were replaced by the superior right of whatever firm would best promote economic development. Morton Horwitz’s *The Transformation of American Law* is an excellent history of these changes.

  34. Joe:

    The point is not that they supposedly have to pay you “fair market value” for your property. (Who defines fair anyway? Maybe I really like my house and don’t want it demolished. Perhaps it has great sentimental value to me that “fair market value” can’t quantify). The point is that you must sell because the government says so, not because you choose to do so.

  35. matt, you’ve gone beyond defending the Constitution, to the level of amending the Constitution.

    “…nor shall property be taken for public use without just compensation.”

    See those last three words? Taking people’s property for a public use is Constitutional, as long as they’re compensated properly.

    I value a lot of things differently from the market, too. It doesn’t change what I have to pay, or what I can command for it.

  36. Joe:

    First, value on the market is a lot different than what the government decrees is the market value of your property. A market transaction is voluntary with both sides agreeing to the transaction, but when the government decrees that your property is worth X amount and wants to take it for some greater good, there’s nothing market oriented about it.

    I could care less about what the Constitution says to be honest. It’s meaning has been so distorted over time that it hardly matters anymore. Besides, couldn’t “public use” be used to justify the government transfering property in the name of higher tax revenue (like in the article above)? After all, taxes are used for “public purposes,” right? More taxes means more funding for various “public uses” doesn’t it?

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