Federalism and constitutional property rights—a response to Rick Hills

|The Volokh Conspiracy |

As noted in my last post, the Washington Times and the Federalist Society recently published opposing columns on constitutional property rights by NYU law professor Roderick Hills and myself. Much of Hills' thoughtful column is a critique of my previous work calling for stronger judicial enforcement of constitutional limits on the use of eminent domain to condemn private property.

Hills' main point is that federal courts should mostly leave property rights issues to the states, because state and local officials have greater expertise about relevant local conditions and are less likely to make serious errors. As I have pointed out in previous exchanges with Hills on this issue going back to 2010, the logic of his argument goes far beyond property rights:

This kind of argument against federal court enforcement of constitutional rights isn't limited to… the Takings Clause, or even property rights generally. It applies to federal judicial enforcement of any constitutional right that requires policing a large number of complex policy decisions by a wide range of state and local officials. Consider state and local policies on freedom of religion, racial discrimination, and searches and seizures. Lots of different state and local governments have policies that regulate various religious groups or engage in racial discrimination. And, obviously, religious and racial issues differ enormously from state to state. Consider the vast differences between, say, Idaho, Mississippi, and New York. Things are even worse when it comes to the Fourth Amendment…. [T]he conditions that determine whether a search is "reasonable" or not vary from house to house, to say nothing of city to city or state to state. Yet few claim that such complexity and diversity disqualify federal judges from enforcing the First and Fourth Amendments.

If superior local expertise is not a good justification for federal judicial abdication of responsibility for enforcing other constitutional rights against state governments, it cannot justify tolerating violations of constitutional property rights either. Moreover, as I explained more fully in an article inspired by earlier debates with Hills, federal judicial enforcement of constitutional property rights actually promotes rather than undermines the use of superior local knowledge. When federal courts protect property rights against violation by state and local governments, it is not federal judges, but private property owners who ultimately get to determine the use of the property in question. And, most of the time, property owners both have greater knowledge about their land than government officials, and stronger incentives to use it efficiently. Even if federal judges know less about the property in question than state officials do, property owners are likely to know more than both.

Hills suggests that "public use" constraints on eminent domain, in particular, should be left up to state discretion because the Public Use Clause is "ambiguous." For reasons I discuss here, there is a strong case for construing "public use" narrowly on both originalist and living constitution grounds. At the very least, "public use" is no more ambiguous than many other broad, general phrases in the Constitution that federal courts enforce all the time, such as "due process," "equal protection" or "unreasonable searches and seizures."

Hills also cites Detroit as an example of a city that could benefit from being able to use eminent domain to condemn property for transfer to private parties. I have to admire his chutzpah in relying on this particular example. Detroit is a city with a long history of extensive eminent domain abuse, lowlighted by the infamous 1981 Poletown case, in which some 4000 people were forcibly displaced so that the land could be transferred to General Motors to build a new factory. Ultimately, Detroit's misuse of eminent domain was a notable factor in the city's economic decline, culminating in bankruptcy. To say that Detroit would be better off with more use of eminent domain is a little like saying that the Soviet economy would have worked better if only they had relied more on central planning.

In Hills' view, the city today needs to use eminent domain to seize "derelict structures owned by absentee landowners that bring down the property values of neighboring lots." But to the extent that these structures really are "rat-infested, crime-harboring wrecks," as Hills describes them, it is unlikely that the owners would have much objection to selling them voluntarily. If the owner cannot be identified and is not paying property taxes, the property can be seized for tax delinquency or dealt with by a variety of other means. Addressing such problems does not require giving local governments a blank check to condemn property for transfer to influential private interest groups—the very sort of taking that helped get Detroit into dire straits in the first place. Indeed, as development economists emphasize, the protection and security of private property rights is an important prerequisite to promoting sustained growth in economically depressed areas.

Finally, Hills argues that federal courts need not intervene to protect property rights because the states can be trusted to do so on their own. For example, he notes that the Michigan Supreme Court eventually reversed the Poletown decision in 2004. There has indeed been important progress on property rights issues in some states. However, since the Supreme Court first ruled that states and local governments could condemn property for almost any reason they want in the 1954 case of Berman v. Parker, state governments have forcibly displaced hundreds of thousands of people, most of them poor or racial minorities. Progress at the state level has been uneven and often excruciatingly slow. Even in a state like Michigan, where abuses of eminent domain were particularly severe, it took fifty years for the state supreme court to impose significant constraints, and state legislators took even longer to act. Many states have made much less progress than that.

In the same year that it decided Berman v. Parker, the Supreme Court also decided Brown v. Board of Education. If the Court had deferred to the states on on the issue of racial segregation in schools back then, it is quite possible that at least some southern state governments would have partly (or even fully) desegregated their schools on their own by 2004. But few would argue that this would have justified federal judicial deference in Brown.

While we will probably continue to disagree on this question, I am grateful for Hills' contribution to the debate over property rights and judicial review. His insightful criticism has inspired me to write what I think is one of my better articles of the last few years, among other works.

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