Blogs > Liberty and Power > Liberals and Kelo

Aug 4, 2005 3:26 pm


Liberals and Kelo



Kevin Drum had some interesting comments on the reaction to the Kelo decision today. I hope it adds weight to my argument here that liberals are far far better allies of libertarians than are so-called "conservatives" these days...

Drum writes in Washingtonmonthly.com

EMINENT DOMAIN....Stephen Bainbridge reprints a graphic from today's Wall Street Journal showing that in the wake of the Kelo decision, which ruled that the constitution doesn't prohibit governments from using eminent domain to take land for economic development, states are beginning to enact laws that restrict the use of eminent domain for the purpose of economic development.

Without taking a specific stand on any of the proposed statutes, this strikes me as the best possible result. The Supreme Court shouldn't have invented a new constitutional restriction on eminent domain, but state and local governments should enact laws that limit land grabs designed solely to increase tax revenue. And if different states want different rules, and want to apply those rules differently in different areas, that's fine too.

So far, this all seems to be working out pretty well.

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Gus diZerega - 8/5/2005

This discussion has been fun to watch. But please remember - I didn't say Drum was a libertarian - I said the caricature of liberals and conservatives rightwing libertarians tend to bandy about is false - on both sides. Today liberals are likely to be better allies than conservatives.

A few more points to stir the pot a bit....

First - the original constitution was a good deal less libertarian and more classical republican than it was after the 14th amendment. (See Reed Akhil Amar's wonderful book on the Bill of Rights). Yet it was applications of the 14th amendment to segregation and the like that caused many conservatives - not all, but many - to moan about big government even though it was limiting government at the local level rather than expanding it at the federal.

Second - one of the most interesting weaknesses in libertarian theory - a weakness I once accepted myself - is its denial of any reality to "the public." This argument works only if every value that peaceful people can accept and act on can be EQUALLY easily manifested within the market characterized by a system of private property rights agreed on voluntarily. But neither of these points is true.

The market is one system of abstract rules for reaching agreement - and it manifests as a system\ of private exchange. Marvelous and wonderful as it is, it is but one system among several. Least controversially in this forum, science is another such system of abstract rules creating a spontaneous order. Different rules lead to different kinds of outcomes - even though science is as formally voluntary as the market. One can do some things more easily within the rules of the market, other things more easily within the rules of science.

A system for settling society wide questions of vital interest to all is another. A minimal such question is what should be property rights and what should not. Locke might suggest a governmentless method - but Lockean logic requires "as much and as good" to be available to others after private appropriation. Greater productivity from private property solves some issues arising from his provisio, as he himself emphasized. BUT it does not solve many of the environmental issues. For example, is it legitimate to own coastal property? By Locke's logic, not any more - at least without being legitimately subject to public oversight top ensure access to others.

This is a PUBLIC question and can only be solved by PUBLIC means. To solve it we need some way of reaching agreement. Unanimity is the ideal if people will agree to act both reasonably and non-strategically. Since they will not, that rational alternative is to opt for something less than unanimity but protecting as much as possible minorities from majority oppression. Madison discussed the issue at length - and wisely in my view, in the Federalist.

The result of my argument is not to justify “the state” but to justify the public - actually many publics. The most interesting question in classical liberal theory, in my opinion, is how to serve public values with the least reliance on decisions where there are losers. But that requires decoupling the public from the market, and looking for solutions in what is now termed civil society.


Radley Balko - 8/5/2005

...is hardly friendly to libertarians.

http://www.theagitator.com/archives/022100.php

He seems to have nothing but contempt for them, in fact.

http://www.theagitator.com/archives/018611.php
http://www.theagitator.com/archives/015097.php

He may oppose taking private land to give to developers, but I'd wager he has no problem with takings for the vaguest of environmental preservation reasons.


Radley Balko - 8/5/2005

...is hardly friendly to libertarians.

http://www.theagitator.com/archives/022100.php

He seems to have nothing but contempt for them, in fact.

http://www.theagitator.com/archives/018611.php
http://www.theagitator.com/archives/015097.php

He may oppose taking private land to give to developers, but I'd wager he has no problem with takings for the vaguest of environmental preservation reasons.


Radley Balko - 8/5/2005

...is hardly friendly to libertarians.

http://www.theagitator.com/archives/022100.php

He seems to have nothing but contempt for them, in fact.

http://www.theagitator.com/archives/018611.php
http://www.theagitator.com/archives/015097.php

He may oppose taking private land to give to developers, but I'd wager he has no problem with takings for the vaguest of environmental preservation reasons.


Anthony Gregory - 8/5/2005

". . . which ruled not on federalist grounds, but on interpreting "public use" to mean something otherwise."

Sure, this was a big problem with it. I know no libertarian who believes different. But I do happen to think that the "public use" vs. "private use" issue _is_ overblown: theft is theft. The issue for me revolves around "just compensation." Compensation is not just if both parties don't agree to it.

Personally, I don't see any utilitarian need for eminent domain whatsoever. A free society, even minarchist, would have almost no government property.


Brian Radzinsky - 8/5/2005

Of course decentralization is odds on better for liberty, for reasons we already know. But a negative restraint on all levels of government activity, albeit from the federal level, is a lot more palatable than what we witnessed with the Kelo case, which ruled not on federalist grounds, but on interpreting "public use" to mean something otherwise.

After a bit more research it seems that many of these movements to ban eminent domain takings on the state level have been waiting for a catalyst such as Kelo to gain the momentum they need.

If Kelo vs. New London hadn't happened at all, there most likely would have been some *other* case that would raise the issue of eminent domain. But the fact that Kelo has spurrned many of these movements makes me, and others, would have had the decision go the other way.

The only saving grace is that these state level protections, because of their locality, will most likely be stronger and easier to enforce than a federal mandate.


Anthony Gregory - 8/5/2005

I do feel sympathy for Kelo, and all people who could theoretically be protected by the federal government against other states, but I tend to agree that, in the long run, decentralism of power is best for liberty. I think Ron Paul and Roderick Long have both made some good points about this. And, personally, I opposed the Kelo decision as it was handed down.

Brian Radzinsky writes: "Furthermore, odds are those municipalities and states that are banning these types of takings are just the ones who wouldn't initiate them in the first place."

According to the Institute for Justice,

With his signature later today, Governor Bob Riley is expected to make Alabama the first state to give its citizens stronger protections against eminent domain for private profit in the wake of the U.S. Supreme Court’s decision in Kelo v. City of New London.
A couple years ago Neal Boortz made a lot of noise about eminent domain being used in Alabama to build a Wal-Mart.

The Institute of Justice Press release later says,
In the wake of Kelo, legislation has been introduced in seventeen states (Alabama, California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas) limiting the use of eminent domain for private projects or tightening eminent domain procedures. Lawmakers in another seven states (Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin) have announced plans to introduce eminent domain legislation in upcoming sessions. Legislators in Colorado, Georgia and Virginia now hope to revive previously introduced bills.

Legislators in Alabama, California, Florida, New Jersey, Texas and Michigan are mobilizing to support state constitutional amendments prohibiting eminent domain for private development. Arkansas, Delaware, Florida, Indiana, Missouri, Tennessee and New Hampshire have created state commissions to study the use of eminent domain and ways of reining in abuse. . . .

Poll after poll shows Americans virtually united against eminent domain for private profit. Eighty-nine percent of Connecticut voters say the legislature should limit eminent domain, according to a poll by Quinnipiac University. Ninety-three percent of New Hampshire citizens oppose takings for private development, according to the University of New Hampshire. A recent Wall Street Journal/NBC poll found that Americans cite private property rights as the current legal issue they care most about.


This backlash, all over the country, seems to me likely to result in legislative prohibition of certain takings in far more than "just the [jurisdictions] who wouldn't initiate them in the first place." I hope so, at least.


Brian Radzinsky - 8/5/2005

Exactly. The fact is that the current trend towards banning economic development takings occured only as a result of the Supreme Court's decision. Had the court ruled in favor of Kelo and restricted eminent domain's reach, we wouldn't *need* compensatory legislation. Furthermore, odds are those municipalities and states that are banning these types of takings are just the ones who wouldn't initiate them in the first place.


John T. Kennedy - 8/5/2005

Unless you are, oh I dunno, for instance: Kelo...


John T. Kennedy - 8/5/2005

Unless you are, oh I dunno, for instance: Kelo...


Anthony Gregory - 8/4/2005

Sorry, my indenting got all messed up, but if you just conceptually move everything one indentation over to the left, starting with, "Now, if we want to talk," it will make sense.


Anthony Gregory - 8/4/2005

Yes, but, as has been argued, there is a compelling reason to believe that the Fifth Amendment does not bind the states, as was decided in the 1833 case Barron v. Baltimore:

We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the [p*251] Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.

Now, if we want to talk in terms of sheer principle, then we can argue whether the feds should intervene to stop state violations of rights. Roderick Long makes the interesting argument that, in this case, they should have, but, as a practical matter, it would not be wise to set up a central state with this power per se.

On the issue of "public use" vs. "private use," I have to say I agree, in principle, with Lew Rockwell, whose whole article is worth reading but whose conclusion sums up the issues:

If we are to have a serious debate about eminent domain, we need to get beyond this ridiculous distinction between public and private use. Government is a racket that rewards itself through plunder and always in the name of public purpose. The truth is that there is no coherent way to separate public and private purpose when it comes to government. Its roads benefit private contractors and serve private interests. It’s true they are "free," but so are the streets in shopping malls, which are private. As for public schools, the teachers unions and hordes of bureaucrats are private interests too. Indeed, there is no such thing as the "public," there are only individuals.

Contrary to both the pro-Kelo and anti-Kelo people, the problem is not public or private use. It is eminent domain itself, which is the best example of how government is not the protector of private property but its main violator. No individual should be allowed to take property from others for any purposes. Government should not be judged by a moral code different from that which we use to judge individuals. And certainly nothing is more preposterous than the notion that the seat of the world empire is the best protector of our rights.





Perry C - 8/4/2005

Err.. fifth amendment.. apologies.


Perry C - 8/4/2005

The quote from Mr. Drum: "The Supreme Court shouldn't have invented a new constitutional restriction on eminent domain.."

Um Kevin..

Theres a part of the fourth amendment that goes something like this- " nor shall private property be taken for public use, without just compensation."

The Kelo case was about trying to define thsi concept of "public use" back towards something resembling a meaningful and honest application of that text, instead of the bastardized version that passes as truth these days.


Anthony Gregory - 8/4/2005

Personally, I don't see why abortion is an issue that many libertarians specicially want centrally decided. Mandatory public schooling, drug prohibition, the death penalty — there are lots of policies that I many libertarians will have just as strong opinions about, but would want it to be a state (rather than federal) issue.


Anthony Gregory - 8/4/2005

Personally, I don't see why abortion is an issue that many libertarians specicially want centrally decided. Mandatory public schooling, drug prohibition, the death penalty — there are lots of policies that I many libertarians will have just as strong opinions about, but would want it to be a state (rather than federal) issue.


Gus diZerega - 8/4/2005

Good, sharp and painful question, Steve.

I think the constitutional logic differs in the two cases. But if it is the price to pay to reduce the damn thing's poisonous political influence, MAYBE yes. But this is a political, not a constitutional, judgment. Politics works best on issues that can be compromised.

The short run effect of federalizing abortion will be dead women. Hopefully not many of them, if the decent part of the population contributes to a fund to cover travel expenses for unwillingly pregnant women unfortunate enough to live in such places. I would so contribute.

That REAL people will die is also why the case is NOT really analogous to how eminent domain is interpreted. Nobody dies when businessmen make money at the expense of the weak whose property has been confiscated for them to make even more money. (Only wealthy businessmen like George W. Bush are usually in a position to so abuse the system. And he did.)

I think there is a constitutional right of privacy, that the 14th amendment constituted a liberalization of the constitution's impact on states, thereby liberalizing interpretations of the 9th and 10th amendments, and that this is a very very good thing. But if the political price in this case is too high, and women can leave those places, it may be necessary to back off. A liberal amendment can only liberalize an illiberal culture so much.

Further, it will force people to organize politically to defend their rights and maybe cause people to wake up to the threat of the American Taliban. Hopefully the long run effect of federalizing abortion will be that those states with such nasty religious and political cultures will finally be dragged by their own citizens into the 20th century, and maybe eventually someday into the 21st.

My personally preferred solution - sessession - wouldn't help women unfortunate enough to live in such places either.

Since I have to live with such places influencing who rules me, federalism is better than the alternative.




Steven Horwitz - 8/4/2005

Gus - are you willing to make the same argument about abortion laws?

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