Property Rights vs. Federalism?

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The Castle Coalition warns that time is running out for the Senate to approve the Private Property Rights Protection Act, which is aimed at discouraging state and local governments from using eminent domain for economic development—i.e., forcibly transferring property from one private owner to another with the aim of generating jobs and tax revenue. Under the bill, which the House approved last year by a vote of 376 to 38, governments that engage in such projects would lose federal economic development funds for two years.

Because I cling to the notion that liberty is better served over the long run by faithful application of constitutional principles than by ditching them when they're inconvenient, I have mixed feelings about this bill. On one hand, it's disconcertingly similar to other federal attempts to dictate state or local policy by threatening to withhold money, such as the imposition of a de facto national alcohol purchase age and a de facto national speed limit, both of which constitutionalists objected to as violations of federalism. On the other hand, one could argue that in this case Congress is enforcing the correct reading of the Fifth Amendment's "public use" requirement, which the Supreme Court misinterpreted in Kelo v. New London, the decision that prompted the bill. (This position is reminiscent of the argument that the Protection of Lawful Commerce in Arms Act, aimed at pre-empting state lawsuits that blame gun manufacturers and dealers for crimes committed with their products, was justified as a way of enforcing the Second Amendment—a claim I did not buy because the threat the litigation posed to gun rights seemed too speculative.)

You could also say there's a close connection between economic development funding and the sort of eminent domain abuse this bill targets. Then again, supporters of the drinking age and speed limit mandates made a similar argument about the highway funding they threatened to withhold from uncooperative states. I'd be more comfortable if the bill simply refused federal funding for projects that rely on the misuse of eminent domain, as opposed to withholding economic development money generally. Abolishing federal economic development grants altogether would be even better, since it's hard to find constitutional authority for them. But now I'm talking crazy.

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  1. This combined with your article on the incumbent protection/gut the first amendment McCain/Feingold act, makes it obvious.
    So bloody, revolting obvious.
    Any time we go to court, the government, to get the government to respect our rights we lose.
    No more talk.
    Fight.
    Jefferson, “The tree of democracy must be fertilized from time to time with the blood of tyrannts.”
    That time is now.
    When is Reason magazine going to sponser a libertarian militia?

  2. Combined with your article on the Incumbent protection/gut the first amendment act by Mcain and Feingold, it should be obvious by now.
    Anytime we go to court, the government, to get the government to let us exercise our rights we lose.
    No more talk.
    Fight.
    Jefferson, “The tree of democracy from time to time, needs to be fertilized with the blood of tryannts.”
    That time is now.
    When is Reason magazine going to sponser a libertarian militia?

  3. This is heads I win, tails you lose. How can you object to a bill whose effect in any given case would be to either:

    1. prevent a use of eminent domain for economic development, or

    2. reduce federal spending on economic development, because

    it bothers you that it would involve a broader assertion of federal power over the rapacious states? Or just because it’s similar in form to previous legislation you didn’t like? Hey, you could object to legislation on that last basis for a jillion reasons.

  4. This is heads I win, tails you lose. How can you object to a bill whose effect in any given case would be to either:

    1. prevent a use of eminent domain for economic development, or

    2. reduce federal spending on economic development, because

    it bothers you that it would involve a broader assertion of federal power over the rapacious states? Or just because it’s similar in form to previous legislation you didn’t like? Hey, you could object to legislation on that last basis for a jillion reasons.

  5. I too have mixed feelings on this bill, and I’m Mr. Property Rights. At the risk of possibly oversimplifying, I’m not sure I like correcting a constitutional abortion with another one. For instance, passing a bill that barred elected officials from appearing on camera and talking to the press about anything sixty days before an election would be a nice response to McCain/Feingold, but it would be wrong.

  6. It think this is a little different than speed limits. This is a Constitutional issue. Contrary to popular belief, all three branches, not just the judiciary have a legitimate say in what the Constitution means. This bill is the Congress telling the Supreme Court that they got it wrong in Kelo and that the proper interpretation of the Constitution is that it doesn’t allow the taking of property for private gain.

    There needs to be more of this. The interpretation of the Constitution was never intended to be the exclusive purview of dictators in black robes. It was supposed to be a give and take among the three branches and a much more democratic process.

  7. Or just because it’s similar in form to previous legislation you didn’t like?

    I think, Robert that the reason he didn’t like the previous legislation is in fact because of its form. That form being a broader assertion of federal power over the rapacious states. I also think that you should note the “mixed feelings” comment by Sullum. We all know that there are times when the Feds trump the states and sometimes an issue is on the fence.

    My problem with this bill is it seems like a kind of knee-jerk ‘tit-for-tat’ response to the aberration that is Kelo.

  8. It was supposed to be a give and take among the three branches and a much more democratic process.

    And this is actually very good and oft overlooked point. The checks and balances theme suggested that each branch could check the others. The Supreme Court now tends to be seen as a final check to the other two, its decisions non-reversable and unalterable. Whereas no one questions that the executive and legislative are reversable or alterable. I suppose this is why every supreme court nomination is a shrill fight with the out-of-power party claiming the end of the world as we know it.

  9. Paul,

    Sometimes a tit for tat is what is called for. The Supreme Court should be slapped down for Kelo. Don’t think for a moment those old bastards don’t put their fingers to the wind when making decisions.

  10. Property rights? When did we start having rights on property we don’t own? We rent it from the government. Stop paying property rent (taxes) and see who owns it. It’s a myth.

  11. My guess is that as state-level fixes to Kelo increase in number, many of which are really bad law (see Oregon or Washington proposals), there will be more pressure for congress to provide a uniform solution. Not sure this bill fits the bill, however.

  12. A nice look at the origins of property rights.

    http://www.santafe.edu/research/publications/workingpapers/02-11-061.pdf

    A highlight:
    “This model thus may provide the causal underpinnings for the claim that individual property rights may be counted among Parsons’s list of evolutionary universals, while vindicating Hayek’s suggestion that market institutions may have evolved through cultural group selection.18 Ironically, the causal mechanism itself is Marxian in origin, for he was the first to articulate the view that revolutions in social structure are driven by advances in technology. ?Social revolution? occurs, he wrote, when ?the material forces of production [technologies]…come into conflict with … the property relations within which they had been at work before. From forms of development of the forces of production these relations turn into their fetters.? (Marx (1904):11-12) The same mechanism (albeit with less revolutionary consequences) appears to have been at work in a number of property rights transitions. Examples include the introduction of barbed wire fencing and its impact on property rights in the U.S. South West ( Anderson and Hill (1975)), and the impact of water-driven mills in
    19th century New England on riparian rights (Horwitz (1977)). Oliver (1962) gives a related
    account of the transformation of the social structure of the U.S. Plains Indians resulting from the introduction of horses. Of course, if this general approach to the evolution of property
    rights is correct, there is no to doubt that future changes in technology may lead to further
    property rights transformations, suggesting that the teleological implications sometimes read
    into Parsons, Hayek and Marx may be misguided.”

  13. Cowards.
    Hide behind big words to make your simple arguement sound complex.
    Cowardice is what you argue but, being cowards, you can’t admit it. So you stick your ego in a dictionary. Disgusting.

    One way to stop this. Rope, tree, judges and congressmen who voilate their oath, then assemble.

    Look up militia people.

  14. Terry,

    Let me venture a guess and posit that you have never done anything of the sort.

    Pound sand, big talker.

  15. Richard, your right. I would like to but I am only one man.

    I have donated to Soliders Angels, Sniper sponser, WTC orphans fund and a few others.
    But it just doesn’t feel right. Doesn’t feel I am doing enough.
    So yea, I want to join a militia and fight for cause of freedom.
    I figure, if possible, here might be a place to start.

    BTW: In some way’s aren’t all Reasonoids, libertarians big talkers if they are afraid to pick up the gun in defense?

  16. I, Terry, was the auother of the last post, not Richard.
    Sorry about that.

  17. On a tangent, we should subtract 5% from the incumbent’s vote total on the grounds that this is portion of his vote is derived from his prior influence on government policy. If he can’t win by more than that, then the challenger must be a better candidate.

  18. Terry must be a government agent looking for people to charge with treason and conspiracy.

  19. As to the essential question: On the grounds that the Constitution doesn’t really matter and federalism is pretty nearly dead, why not?

  20. “But it just doesn’t feel right. Doesn’t feel I am doing enough.
    So yea, I want to join a militia and fight for cause of freedom.”

    Sounds like every shiney shoed agent provocatuer ever sent into a crowd…….

  21. “liberty is better served over the long run by faithful application of constitutional principles”

    I think liberty is better served over the long run by the abolition of all government and the consequential restoration of the notion of private property.

    Unfortunately, I think Terry (if serious) advocates a noble but foolish course in outright revolution: a better approach along the same lines would be for liberty-minded individuals to amass someplace and declare independence in a peaceful way, though wisely with the backing of a paid insurer/private defense contractor who could enforce such a decision well enough to discourage any attack by the US national gubmint.

    An alternative approach (which happens to be the one I am following given my unfortunately opportunistic residence in the People’s Republik of Massachusetts) is to recruit other people into the wonderful worldview of private property anarchism. People who are already liberty-minded are only a slight push away from understanding that the root of every major evil in our society is government itself. Government is most assuredly to disappear utterly when it loses its legitimacy among the populace, so anything you can do to help that along is a good thing.

    Cheers,
    Kyle

  22. are really bad law (see Oregon or Washington proposals), there will be more

    Fellow Neu Mejican, of what law are you speaking?

  23. But it just doesn’t feel right. Doesn’t feel I am doing enough. So yea, I want to join a militia and fight for cause of freedom

    Dear sir, I would like to purchase an illegal substance from you. How might we facilitate this transaction?

    Should I hold my hands out now, so you can cuff them?

  24. Paul,

    Oregon – Measure 37 – Passed in 2004
    Washington – Initiative 933

    These are strange regulation heavy attempts (pushed by libertarian groups, strangely) to overburden government programs involving ED with red tape in the hopes they will result in less government programs.

    Bad laws, poorly written.

    Donde Vive?

  25. Some others I haven’t had a chance to read the language on…

    Nevada – Property Owners Bill of Rights
    Idaho Proposition 2
    California Proposition 90
    Montana Initiative 154
    Arizona Proposition 207

  26. Jacob:

    Because I cling to the notion that liberty is better served over the long run by faithful application of constitutional principles than by ditching them when they’re inconvenient, I have mixed feelings about this bill.

    For sure but as you point out, the S.C., the final legal arbiter of constitutionality has ruled against liberty. So there’s nothing practical to do except for supporting congressional action. I say “practical” to exclude ethical civil disobedience, which in this case seems unlikely to bring about general liberty.

  27. MainstreamMan,

    The link looks interesting. I’m gonna check it out. Thanks. Where did you find it? Where was it published?

  28. Santa Fe Institute.

    They concentrate on complex adaptive systems like economies, brains, galaxies, ecologies.

  29. Neu Mejican:

    First:

    Donde Vive?

    No mas. I’m a native of Southern New Mexico, born at White Sands Missile Range (WSMR- military parents) and grew up in Las Cruces. I now reside in Seattle.

    These are strange regulation heavy attempts (pushed by libertarian groups, strangely) to overburden government programs involving ED with red tape in the hopes they will result in less government programs.

    I disagree on the 933 initiative in Washington. The text is as follows:

    This measure would require compensation when government regulation damages the use or value of private property, would forbid regulations that prohibit existing legal uses of private property, and would provide exceptions or payments. Should this measure be enacted into law? Yes [ ] No [ ]

    This is in a direct response to a little early morning machination by the King County Council that said that 35% to 50% of all rural land in ‘critical areas’ also known as the CAO or “Critical Areas Ordinance” must remain with native vegitation and in essence, not be touched by the owner.

    This is one of these issues where the government doesn’t ‘take’ your land, they just show up on the doorstep and tell you to quit using it.

    The reason we libertarians support this is because the CAO was seen as a kind of final straw in environmental protections (some good, some bad) Gone Wild(tm). It was, as you guessed, overwhelmingly supported by over-educated urban dwelling latte sippers (yours truly minus the over-educated part) whose land would never be touched by such an ordinance because ‘we already got ours’.

    Rural land ‘owners’ are– shall we say– less than pleased. Lawsuits a plenty have followed.

    Here’s where I stand on this issue… exactly.

    We want environmental protections. Especially us latte sipping urban dwellers who already ‘got ours’. Fine. But we don’t want to pay for them. Environmental protections cost in terms of lost production and in the most extreme cases, lost rights. If I’m going to support a measure which takes away large chunks of viable property from individual owners, should I be willing to pony up some money? Because remember, it doesn’t cost ‘The State’ a dime. The State has no money, they simply have my money. If my taxes go up if this initiative passes, I won’t complain. Well, I will because I thought it a foolish thing for KC to do– but in the big picture, I’ll accept it as a Responsibility of a resident of King County.

    And more importantly, the initiative doesn’t say the state can’t invoke such rules, it merely states that compensation must be paid– no more unfunded mandates to property owners. So pass all the development blocking rules you want on people that bought their land 20 years ago and planned to put up a mother-in-law house. But be prepared to pony up.

  30. Paul,

    You should read the whole thing.

    As I said.

    Bad law, poorly written.

    http://www.secstate.wa.gov/elections/initiatives/text/i933.pdf

  31. You should read the whole thing.

    Have. I see little problem with it. Unintended consequences? Probably. No one seems to consider the laws of unintended consequences when they pass the regulations, perform the takings and restrict the development. What this Initiative does is force the government to perform a kind of economic impact study before passing onerous legislation. No one weeps for developers who have to perform environmental impact statements when they want to build something. It’s hard for me to cry for government when the citizens do unto them as the government has been doing unto us for years.

    The fact is, none of this would be happening if the zillion pound hammer of government had shown some restraint. Things have simply gone too far, and i933 is the response. You can’t lob bombs at a population indefinitely without ever expecting them to fire a shot in return. i933 is that shot. Rural property owners are mad as hell and they’re not going to take it any more.

  32. “citizens do unto them as the government has been doing unto us for years”

    We can agree to disagree on the tortured language of this initiative, but I don’t see how more regulations is a position that a libertarian can support. Remember that the government (as you already stated) is the citizen. You are really voting to stick it to yourself. If you are against COA, you should put forth an initiative to repeal it, not add another layer of regulation on top of it. The language would be easy. “This initiative would repeal XXXX.” And another sentence that restricts Kelo style takings. Done.

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