Epstein vs. Byrne on Kelo v. New London

Legal Affairs is running an interesting debate between Univ. of Chicago law prof (and regular Reason contributor) Richard Epstein and Georgetown's J. Peter Byrne about the eminent domain case Kelo v. New London, which was just heard by the US Supreme Court.

Sez Epstein, whose Takings rewrote the book on eminent domain philosophizin',

Ratchet compensation up to the right level, where folks get something for subjective value, moving expenses, good will, appraisal fees and the like, and the price disincentive will help out by dulling the taste for new land.

Whole thing here.

Comments

[Jennifer]

Based on the few bits of information I've seen about the proceedings thus far, I think the SCOTUS will side with the city and developers on this one. I really, really hope I turn out to be wrong--otherwise, Bill Gates, George Soros, and the Wal-Mart corporation will be about the only three people or legal entities in America who can know for certain that their property will never be confiscated and handed over to someone who will pay higher taxes on it.

[Jennifer]

Oh, and that debate posted here was very interesting.

[Eric the .5b]

From the debate:

Our cities house the majority of our poor citizens but a declining minority of economic activity.

Funny, you might think such things might be related, not a shocking contrast.

[JLA]

On the topic of property rights:

"She asserts that when plaintiff 'delivered' his sperm, it was a gift - an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said. "There was no agreement that the original deposit would be returned upon request." (article)

I know it's offtopic, but it's a great quote. (Don't mod me down!)

[joe]

Of cours they're related, Eric.5b. Business investment and middle income people moved out of the cities, leaving behind poorer people, and less opportunity for them to become wealthier.

On the debate: it's interesting to watch those who most commonly rail against "activist judges" and "far-away government" arguing that the courts should second guess the City Council on the merits of the case. It would appear that opposition to judical activism is about as principled as federalism. Of course, the opposite it true, as well.

The writers spend a great deal of effort on the merits of the redevelopment scheme. This strikes me as completely irrelevant to the Constitutional issue. Is there anyone out there whose opinion about using eminent domain on Ms. Kelo's house will be swayed if New London's plan can will (or won't) produce the projected outcomes? The courts don't exist to make the legislature's decisions for them.

"I think, Peter, that you misstate my position when you align me with Justice Scalia in insisting that under "public use" we can only allow takings for the use of the public. That position went by the boards well over 150 years ago. It will not be revived today; nor should it."

Are we clear on this, people? Not even the property-rights, anti-takings side pretends that the public use standard requires public ownership. You might as well argue that people in 1780 didn't consider public scourgings to be cruel and unusual. File this one with private owership of machine guns and other counter-factual parlor games; that's not the way the law works.

In practice, people whose properties are taken already command a premium above actual market value, since the government is willing to pay above market rates in exchange for a smooth, quick transaction. Though as the authors note, the holdouts in this case aren't motivated by the money. They could have gotten this premium already, if that's what they wanted.

Finally, I liked the point about renters suffering the same "noneconomic damages" as property owners. In fact, wouldn't a renter suffer exactly the same damages when her landlord boots her to redevelop the property privately?

[matt]

Sorry to say it, but you only "own" your property until the government decides it has found a better "use" for it.

[Gary Gunnels]

joe,

On the debate: it's interesting to watch those who most commonly rail against "activist judges" and "far-away government" arguing that the courts should second guess the City Council on the merits of the case. It would appear that opposition to judical activism is about as principled as federalism. Of course, the opposite it true, as well.

The difference here is that there is a constitutional issue at stake. Or are you suggesting that the Constitution is something which the legislature, etc. can just willy-nilly change as if it were a mere statute? If so, I suggest you read Marbury v. Madison.

The fact is that courts have a role here because of the language of Article III (internal), the structure of the Fifth Amendment (external), and due to the structure of the plan of government envisioned by the Constitution (structural). There is nothing hypocritical about asking the courts to do their job.

The courts don't exist to make the legislature's decisions for them.

Actually, they do in certain circumstances, which is why the courts from time to time overturn the decisions of legislatures. We have a "mixed" form of government after all, not one with a strict seperation of powers. Your perferred method of government is apparently an unchecked legislative body.

You might as well argue that people in 1780 didn't consider public scourgings to be cruel and unusual. File this one with private owership of machine guns and other counter-factual parlor games; that's not the way the law works.

Your analogy doesn't make any sense. And the appropriate date would the date of the Fifth Amendment's inclusion into the Constitution.

Why doesn't your analogy make any sense?

First, machine guns are like artillery and other like weapons from the 18th century. The arms right never covered such weapons and that's why they are not covered today. Thus this is not a standardless amendment; the historical and cultural background of the amendment informs it and we can use such to differentiate types of protected v. non-protected weapons (and this is exactly how the courts approach the issue).

Second, the Eighth Amendment is a standardless provision which changes with cultural attitudes (if you care to look at the Congressional debate on the amendment you will see that is essentially what the Congress argued at the time).

Third, the 5th Amendment isn't standardless; like Second Amendment, it too has a standard, and that standard is the historical and cultural understanding of "public use" at the time of the adoption. If you want to change that standard, then propose another amendment.

Accordingly, your attempted analogies are inapposite.

In practice, people whose properties are taken already command a premium above actual market value, since the government is willing to pay above market rates in exchange for a smooth, quick transaction. Though as the authors note, the holdouts in this case aren't motivated by the money. They could have gotten this premium already, if that's what they wanted.

Do they get a % of the profits from the development that is planted on top of their homes?

In fact, wouldn't a renter suffer exactly the same damages when her landlord boots her to redevelop the property privately?

The difference of course is that its a private property owner's decision; indeed, if the government tried to step in and force the individual to keep the rental properties going, then it could be construed as a regulatory taking. Indeed, at least in some states - via statute or constitutional provision - it wouldn't be an issue of could or might, it simply would be a regulatory taking.

I suggest in the future that you leave the constitutional analysis to people who - like myself - are actually trained in it. 🙂

[Gary Gunnels]

So, the question is, what would be truly analagous to the Fifth Amendment's "public use" language?

Well, clearly roads and canals were considered public uses at the time, and one could make ready analogies to airports and other like transportation facilities based on that structures. Public use would also include fortifications, and today an analogy to that would be military bases, firing ranges, etc.

Was there anything remotely like "blight removal" at the time of the adoption of the Fifth Amendment?

[Eric the .5b]

Joe:

Of cours they're related, Eric.5b. Business investment and middle income people moved out of the cities, leaving behind poorer people, and less opportunity for them to become wealthier.

(Careful, you got dangerously close to spelling it the same way I do.)

But hey, there are always the anti-sprawl people out to put everyone back in the cities they left, or at least keep anyone from getting any farther way...

On the debate: it's interesting to watch those who most commonly rail against "activist judges" and "far-away government" arguing that the courts should second guess the City Council on the merits of the case. It would appear that opposition to judical activism is about as principled as federalism.

And it's just mind-numbing to watch people equate "overturning unconstitutional law" with "pulling law out of one's ass".

Are we clear on this, people? Not even the property-rights, anti-takings side pretends that the public use standard requires public ownership...In practice, people whose properties are taken already command a premium above actual market value, since the government is willing to pay above market rates in exchange for a smooth, quick transaction. Though as the authors note, the holdouts in this case aren't motivated by the money. They could have gotten this premium already, if that's what they wanted.

You know, I really prefer the "government needs to be able to take things from you to help other, less-well-off people" pose to the naked "government needs to be able to take away your little hovel, you slimy holdout, so they can give it to someone richer who'll pay them higher taxes", at least if one bundles it up with "how dare someone in favor of localized government question a city government?"

[Jennifer]

If this passes, what's to stop ALL poor cities from using eminent domain to try and become mini-Manhattans? Where the hell are poor people supposed to live? Is home ownership (or at least the illusion thereof) going to become another one of those luxuries that only the rich can afford?

[Jason Ligon]

I'm confused by Epstein's position, as I have been for years.

A question for joe. Is there any limit on the power of eminent domain so long as local government projects (not demonstrates, projects) some public good from the seizure? Can developers lay claim to any parcel of land they want on the grounds that homes are not as economically beneficial as shopping centers?

[VoiceOver]

Don't give joe any leeway:
Business investment and middle income people moved out of the cities, leaving behind poorer people, and less opportunity for them to become wealthier.

How about we state it another way:

Middle income people chose to move to the suburbs, where space was cheaper, were the community was safer, schools were better, air was cleaner, jobs were abundant, the economy was better, and opportunity for advancement was easier.

You cannot let "slick" wording fog the debate.

[Gary Gunnels]

joe,

I'm still waiting for a response. 🙂

[Wild Pegasus]

Actually, the modern conservative movement is the real pillar of judicial anti-activism. Libertarians often favour judicial activism, especially since most libertarians would crap themselves for joy if the Supreme Court overturned Wickard, declaring huge swaths of federal power unconstitutional. See also, Randy Barnett's Restoring the Lost Constitution, which argues for a fervent judicial activism in service of liberty.

(Wickard was the Supreme Court case in the 30s which basically said that the Commerce Clause gives Congress the right to do anything it wants.)

- Josh

[We're All Activists Now]

Modern conservatism (aka, the theocracy) also wants activist judges, albeit activists for their agenda. School prayer, creationism, abortion, pornography, homosexual behavior are just some of the issues that the theocrats would love to have judicial rulings on. Their arguments often rely on extra-constitional factors such as popular opinion, custom, precedent, and intent. The plain language (to say nothing of the not-so-plain language) is almost secondary. Of course, in this regard, the theocrats aren't much different from the statists on the left, who also value extra-constitutional issues.

A libertarian judiciary would also be activist, but more along the lines of a veto after the fact. A libertarian judiciary ought to hold a view similar to "unconstitutional until proven otherwise". In other words, if a challenge to a an act of governement arises, it will be up to the proponents of the act to justify it to the Court. Right now, the presumption is usually the reverse. The SCOTUS will bend over backwards for the executive and legislature. Really, how often is a challenge upheld?

There's no such thing as a non-activist judge. All that shifts is the point of view.

[Andrew D. Todd]

To: Gary Gunnels ( February 24, 2005 10:19 PM)

The framers would have used the term "enclosure act" to describe what the City of New London is doing. Historians use the term "enclosure movement." This would of course be in England, in the eighteenth century. Enclosure was dealt with as a legal proceeding because significant numbers of ordinary Englishmen still owned land in a recognizable way. It typically worked out to displacing subsistence farmers to set up large commercial farms, along economically progressive lines. By the eighteenth century, enclosure usually did not mean turning out people and putting in sheep.

The term "clearances" would be used in Scotland, in the nineteenth century. The legal system had ceased to be feudal after Culloden, but many of the old attitudes persisted. The tenants might have had no legal rights, but they referred to the sheep which displaced them as "the laird's four-footed clansmen." This was within the framework of the feudal bond of land for loyalty. Eventually the excesses of the clearances resulted in the Crofting Acts.

In Ireland, after the potato blight, the residents had nothing resembling a legal or customary title, and the word "evictions," pure and simple, was used. In the case of Ireland, eviction actually did involve turning out people who had pursued a potato monoculture to starvation point. See Cecil Woodham-Smith, The Great Hunger.

It might be possible to find comments of the framers on enclosure. I doubt you would find an actual instance of enclosure in America, simply because of the economic circumstances. The dominant tendency, on the contrary, was the fugitive slave or bond-servant, generally heading for the nearest frontier. The scarce resource was labor, not land. Most of what is now urban Boston, was, in the eighteenth century, an extensive belt of swamps (e.g. the Back Bay), which got filled in during the nineteenth century.

I have not been able to find a set of search keywords that do a very good job of filtering out History of Western Civ syllabi, so the search will be something of a tedious job, if anyone is interested.

Google:

http://www.google.com/search?hl=en&q=%2Benclosure+acts%22+%2Bframers&btnG=Google+Search

An application of the idea of enclosure to intellectual property:

http://www.law.duke.edu/journals/lcp/articles/lcp66dWinterSpring2003p33.htm

[joe]

Gary,

"The difference here is that there is a constitutional issue at stake." There is always a constitutional issue at stake when a case is appealed to a higher court on the grounds that the law (or its application) violates the Constitution. Horrible, activist courts ruling on cases like, say, Brown vs. Board and it progeny ruled on constitutional questions.

Only on the fraction of cases that rise to the level of strict scrutiny are courts actually charged to substitute their judgement for that of the legislature on the merits of a decision, and those situations almost always arise when the legislature itself passes a law authorizing the courts to so judge a case. In the vast majority of cases, the legislature is assumed to be the proper venue to make legislative decisions, and the courts subject the legislature's decisions to lesser levels of scrutity, such as rational nexus.

"Do they get a % of the profits from the development that is planted on top of their homes?" No, but then, I never claimed they did - just that they typically receive some premium.

"The difference of course is that its a private property owner's decision." My point exactly - if this was a genuine, compensatable damage, then it wouldn't matter whether that damage was done by the government or a private party. If I'm struck in the head with a truncheon, I have received exactly the same damage if it is done by a repairman or a government official, and my assailant is equally liablle. I'm afraid you're going to have to pick a position - either a tenant turned out of his apartment suffers damages from the act, or he does not.

Eric.5b, "And it's just mind-numbing to watch people equate "overturning unconstitutional law" with "pulling law out of one's ass"." I hope you're not under the delusion that you've drawn a distinction that goes beyond "Me like" and "Me no like" here.

Free, the initial lowball offer doesn't stand a chance of holding up if it is challenged, and represents an openning bid in a period of haggling that will always end up with the government agreeing to pay greater than market value, in exchange for avoiding a lengtly court case.

Jason Ligon, are you asking me? The question you raise is exactly what is before the court. The most obvious answer is that the limit is what the public in a city decides the limit should be. Beyond that, does the Constitution impose limits on what eminent domain can be used for? I guess we're going to find out.

[joe]

Voiceover, are you of the opinion that your wording in some way contradicts my point? You've explained why (actually, on small element of why) the dynamic I mentioned occured.

Uh, yeah, you really got me there. Now that I know people who moved the suburbs weren't marched there against their will Bataan-style, my whole world has been rocked.

[Eric the .5b]

Wish I'd checked back in sooner as Joe shows his true stripes.

Eric.5b, "And it's just mind-numbing to watch people equate "overturning unconstitutional law" with "pulling law out of one's ass"." I hope you're not under the delusion that you've drawn a distinction that goes beyond "Me like" and "Me no like" here.

So, in other words, he doesn't really believe the Constitution means anything that anyone can rationally base decisions on, and it's just all up to "interpretation" that can mean anything one wants it to mean.

I'm definitely going to make a point of doing so, but would people please kindly call Joe on his BS if and when he tries to make an argument based on legal principles or constitutional arguments?

[joe]

Apparently, "So, in other words..." is some sort of magical device that allows you to attribute nonsensnical, easily demolished positions to people.

I didn't claim there were no grounds to argue a Constitutional position, Eric; just that you haven't displayed the intellectual firepower to do so.