Public Use

Israeli Supreme Court Strikes Down Law Authorizing Expropriation of Palestinian Private Property for Use by Israeli Settlers—and Cites my Work on Eminent Domain in the US in the Process

The decision distinguishes US Supreme Court cases allowing the government to transfer property from one private party to another for almost any "public purpose."

|The Volokh Conspiracy |

Yesterday, the Israeli Supreme Court of Israel issued a major ruling barring expropriation of privately owned Palestinian land on the West Bank for transfer to Jewish settlers. The New York Times has a summary of the decision:

Israel's Supreme Court on Tuesday overwhelmingly rejected a 2017 law that would have allowed for the retroactive legalization of thousands of Jewish homes built on occupied West Bank land privately owned by Palestinians, a law so provocative that few believed when it was passed that it would survive judicial review.

The law, whose implementation was frozen because of a Supreme Court injunction issued shortly after it passed, would have paved the way for the wholesale expropriation of Palestinian-owned land in the West Bank on which nearly 4,000 homes had been built, both in authorized settlements and in illegal Jewish outposts.

Those homes — already viewed as illegal by most of the world under international law, for having been built in occupied territory — will now remain illegal under Israeli law as well, and Palestinian landowners will be able to proceed with lawsuits seeking to evict the people living in them and recover their property.

While this is by no means the most important aspect of the case, the ruling  extensively cites my book Eminent Domain: A Comparative Perspective  (co-edited with Hojun Lee and Iljoong Kim); specifically, the chapter I wrote on the history and development of eminent domain in the United States. They also cited my 2011 testimony on eminent domain abuse before the US Commission on Civil Rights (pp. 50-53).

The did so to rely on my analysis of US Supreme Court cases like Kelo v. City of New London and Berman v. Parker, which held that the government can take private property and give it to another private owner for virtually any "public purpose" that might potentially benefit the general public in some way. The Israeli ruling concludes that these cases are different from the one before it, and can be distinguished on various grounds (this is where they build on my work somewhat). While, in the US cases, the government claimed that the taking in question would benefit the general public by eliminating urban blight (Berman) or by promoting "economic development" (Kelo), the Court concluded that the Israeli expropriations were much more clearly intended to simply benefit one social "group" (Jewish settlers) by taking land from another (Palestinian Arab property owners).

Ultimately, the Court ruled that the expropriation of private Palestinian lands in order to build homes for Jewish settlers violates the private property provision of the 1992 Israeli Basic Law, which has quasi-constitutional status and has been held by the courts to supersede ordinary legislation.

In my work on the subject, I have been highly critical of Kelo, Berman, and other similar decisions, which I have argued grossly misinterpret the Public Use Clause of the Fifth Amendment from the standpoint of both originalism and living constitutionalism.

Very tentatively, I would suggest that the Israeli Court might have done better to say that these US decisions are highly questionable even in the American context, and that Kelo in particular has been subject to widespread criticism. Even the author of that ruling, the late Supreme Court Justice John Paul Stevens, admitted that he made a serious error in his majority opinion for the Court. Thus, the Israeli Supreme Court need not have felt any need to square its own rulings with these decisions (which, of course, are not binding on other countries).

But, in fairness, there is a long history of efforts to interpret Kelo and Berman more narrowly, so as to allow greater scope for judicial protection for property rights. I go over many of them in my book The Grasping Hand. What the Israeli Court has done strikes me as well in line with a number of post-Kelo rulings by some federal and state courts striking down "pretextual" condemnations (which I analyzed in Chapter 7 of my book and in this article).

It is not unusual for the Israeli Supreme Court (and high courts in Canada and many European countries) to cite and rely on US and other foreign constitutional law decisions as the Israeli court did here. The practice is far less common in the US, where it is much more controversial.

It is somewhat ironic (though entirely predictable, in context) that the Israeli left is praising this ruling strengthening protection for private property rights, while the right is angry about it.

I may have more to say when an English translation of the decision becomes available. The analysis above relies on a discussion of the Hebrew text with leading Israeli takings scholar Ronit Levine-Schnur, who coauthored an amicus brief in the case supporting the Palestinian property owners, and whose own work on takings is also cited by the court. Ronit, of course, is not responsible for any mistakes I may have made in this post.

For now, I will only add I do not have a strong opinion on the legal correctness of this ruling, as I lack relevant expertise on Israeli law.  I do welcome the substantive result, as it strengthens protection for private property rights against expropriation. I have long argued that such protection is important for enhancing individual liberty, protecting the rights of vulnerable minority groups, and promoting economic development in both the United States and many nations around the world.

Jews, including my own ancestors, have a long history of being victimized by unjust  property expropriations at the hands of both European and Arab Muslim governments (as well as even more severe forms of persecution). Israel should not be in the business of perpetrating similar injustices of its own against other groups. The fact that this case was not on the same scale as many of the expropriations perpetrated against Jews is noteworthy, but still no excuse.

At the same time, it is also worth noting that Israel has an independent judiciary that curbs some of its government's unjust policies, as it has in this case. The same can't be said for most of Israel's adversaries.

UPDATE: I have posted the Hebrew text of the decision here. I have also made a few minor additions to this post.

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  1. Perhaps I’m missing something obvious, but why would we expect an Israeli court to care one way or another whether and to what extent its ruling conflict or conform to decisions of the US Supreme Court? Why was anyone even talking about Kelo?

    1. That’s a bit like asking why would the Supreme Court of Georgia cite a North Carolina Supreme Court decision interpreting a NC statute that was similar to GA statute under review.

      1. North Carolina and Georgia are both part of the same country. Their legal systems are descended from a common legal and historical tradition, and their governments are both subject to the requirements of the US Constitution. Israel and the United States are not and have never been part of the same country, have profoundly different legal histories, and are not bound by a common constitution. So I don’t think it’s really analogous at all. A closer analogy would be the Georgia Supreme Court looking to the Supreme Court of the Northern Territory in Australia—which I would also find odd.

        1. In most cases, sure, but Israel I think is unique. Israel doesn’t really have a constitution. It has so called “basic laws” that are passed by and can be amended by the legislature with a simple majority, just like any other law.

          Those laws are granted a greater priority than other laws and are supposed to solidify the rights granted to Israelis. But, again, because there is no formal constitution, it is often helpful to look at countries that do have a constitution and see what is protected or not.

          The US constitution is often used as a model constitution because it is reasonably straightforward and the rights within are self proclaimed to be self evident.

          This … admittedly it is a bit weird. Israel does not and many ways cannot apply the same level of equal protection that the US constitution affords. So it breaks down there.

          Furthermore, the Israeli supreme court is rather consequentialist, not textualist. You can’t really be textualist without a constitution. But Kelo didn’t revolve around the consequences of the decision, it revolved around around what the word “use” meant. It doesn’t really matter was “use” meant in the 1700s in the United States in Englidh with regards to the 21st century in Israel in Hebrew. So in that sense it doesn’t work.

          But the basic idea is that Israel, in a rather Breyerist fashion, often looks abroad to find what rights are protected.

          1. If living constitutionalism has validity, in that the peoples’ changing attitudes achieve a critical mass, so more rights should be recognized, it would only be so for the domestic population’s changing attitude. For the US anyway, to quote other nations to make up a critical mass deficit would suggest being unconstitutional.

            But that only applies to rights of the people, and not to granting government new powers (outside of protecting those rights), but that’s another ball of wax.

        2. Most people who graduated law school will tell you that you’re spouting nonsense

    2. Because reasoning can be persuasive from other jurisdictions.

      There was a big right wing campaign against “foreign law” that petered out, after Prof. Volokh and others pointed out we use foreign law all the time.

  2. For some reason the comments section was set to “display:none”, and I had to use the browser debugger just to see the comments.

    1. I’m not a bad person!

  3. I think there is a misunderstanding about what “right” and “left” means. Although nationalists like Netanyahu, Trump, and Modi have tended to support more liberal economic policies, their basic approach has very little to do with small-l liberalism, and much more to do with nationalism as social policy. It is the policy of all three to define “true” members of society in racial, ethnic, or religious terms, make government work for and benefit “true” members of society, and try to kick out or otherwise screw everyone else, including taking their property and giving it to the “true” members.

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