You Can Still Hate Scalia et al. after Kelo

IANAL. That’s my disclaimer. Still, Jett wrote on his blog the other day that he felt a little weird being with the dissent on the recent eminent domain case, Kelo v. City of New London. At first blush, I, too, agreed with the dissent, but thinking about it a bit more—as well as spending more time with the opinions—has led me to decide that Kelo is correctly ruled. Furthermore, the anger and/or irritation over the case, such as that expressed by Jett, is a smokescreen to hide what the minority is actually trying to accomplish.

I suspect, ahead of time, that some of my responses will be to the various commenters on the thread over at dKos about Kelo. On the front page, after a few days of gnashing by various diarists about how the court was supporting Walmart, Armando wrote that it was correctly decided. So it might be worthwhile to at least see his post, if not suffer through the 580+ comments. I generally agree with Armando’s analysis, but will do a less legalistic analysis on the flip.

It’s important to remember that the case is pretty narrow. New London came up with a “carefully considered development plan, which was not adopted ‘to benefit a particular class of identifiable individuals,’” and elected to use eminent domain to acquire the remaining lands to make the development plan go through, creating a whole greater the sum of its parts. As such, Kelo does not argue for much of anything new. The Takings Clause of the Fifth Amendment allows the government to take land and pay the people for the taking. The complaint is that New London is doing this to transfer private property from one entity to another, which seems rather arbitrary and problematic. Stevens disagrees with this characterisation, however; the fact of a carefully considered economic plan, with the support of the local, elected government, means that some effort at determining a public use has been weighed and decided. “The disposition of this case therefore turns on the question whether the City’s development plan serves a ‘public purpose,’” he writes. “Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”

In other words, and this is an important first step in my argument about Kelo as an effort at a conservative smokescreen, the court defers to the legislative branch in terms of determining the tests takings must undergo in order to be legal. Takings are Constitutional. That doesn’t mean all takings are good public policy. But the point here is that Kelo is an opinion of judicial restraint—not activism. The “liberals” on the court restrained themselves. They did not take the bait of laying down, from on high, a series of tests that each eminent domain case needs to pass in order to be deemed “for the public use.” The court has punted on that question throughout its history, always deferring to the legislature. In other words, or as Armando puts it in a comment to his post, local government remains important. Not becomes moreso.

This notion of things remaining important, instead of becoming newly important, is of vital importance when gauging the dissents and the common reactions to Kelo that I have seen.

We can start with O’Connor’s dissent, in which she states, from the get-go, that the majority has overturned “this long-held, basic limitation on government power [that the gov't can't take property from person A and give it to person B]. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process.” That is precisely not the case, as Stevens argues in his opinion:

It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.

Kelo argues that the government can’t be arbitrary—it has to consider and spend time wondering about whether the taking is valid or not. And, in the opinion of the court, New London did not abdicate this responsibility in devising their plan. But (the now universally lauded) O’Connor ain’t done with the hyperbole yet: “To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property—and thereby effectively to delete the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”

Come on. This is a canard. This is a smokescreen. The conservatives on the bench have no interest in public use of property. They want the test—they want a little chink in the armor or the Takings Clause so that it can push the slippery slope in the opposite direction. In order to see this properly, it’s important to see the Chicken Little argument against Kelo.

It’s basically the argument that O’Connor makes above. What’s now to restrict the government from taking a person’s land and giving it to another person who promises to pay more in property tax? Who’s going to stop Walmart now? As one commenter on Armando’s post argued, she owns her own property and can sell it at the time of her choosing “in the open market, where I can get the best damned price.” Yet “now” she can “be FORCED to sell at the time of the city/town’s choosing AND at a Take-It-Or-Leave-It Price.” This is totally not the case, as is obvious if one reads the Stevens opinion. New London isn’t doing an A-to-B transfer, since the government stepped in and reasoned this through. But the comment does demonstrate the genius of the conservative bench in crafting their dissent in Kelo in such a way.

The commenter’s language is particularly interesting here. She says that she can be “now…FORCED to sell.” No, there is no “now.” The Takings Clause has been in the Constitution since the Bill of Rights was adopted. The government has always been able to take. The difference (from England) was that it now had to offer a fair (or, “Take-It-Or-Leave-It,” if you will) price for the property. Furthermore, as Stevens points out, centuries of precedent have shown that private entities do often benefit residually from takings. So that part isn’t new, either.

So if there’s nothing fundamentally new here, why are people freaking out about Kelo? Why is Jett posting about it?

I have a few suspicions, and they will return us to O’Connor’s dissent. Eminent domain, I suspect, freaks people the fuck out. We have this image in the US of private property as being inviolable—although the language was changed to “pursuit of happiness” at the last minute. The Takings Clause itself is a nod to that—which is why the sovereign was put under the (then novel) responsibility of compensating the citizen for the taking. Property (which is, as we all know, theft) is held up as some sort of extreme virtue—the house can be defended By Any Means Necessary, etc. This also dovetails with the concept of privacy in the US. Both are individualistic functions of a (properly understood) Liberal tradition. And they are products of capitalism.

As such, any court case where people are up in arms defending the right of people to keep their property should strike progressives as problematic—defending property is not a progressive aim, because in order to defend property, we must, subsequently, defend inequality, racism, and anti-collectivism. Progressives are interested in communities that work, not in isolated people having stuff. Communities mean that some deference must be made to “the public good,” or the “common good,” or whatever the language that was adopted in this post-Lochner Era, New Deal society. And, pace anarchists, collectivity in our contemporary society is built up through the democratic structure of the government.

Still, it’s hard to shake that connection to property—I’m speaking for myself, as well. So, yes, the idea of the government taking any land—even with compensation—strikes us all as a bit icky, which is why, I imagine, legislatures might be wary of using that power much, as they have to answer to voters who can be dispossessed. Of course, libertarian-leaning famous economists whose computers I may or may not fix may argue that eminent domain is already abused, under the familiar “power corrupts” argument. But in even calling into question the soundness of eminent domain, Becker is playing into the second fear of the ruling on Kelo: the total alienation from and distrust of government.

A lot of the commenters to Armando’s post have criticised him for being too idealistic, too legalistic. What’s to stop someone from buying off a county commission now to get land? Why wouldn’t realtors bribe city governments (or be friends with Richie Daley), in order to realise their fantastic dreams of building malls everywhere? Well, those are valid concerns. But what, pray tell, is stopping them now? Is it the Supreme Court’s fault that local government is corrupt? That people pay no attention to local government except when it’s banging them?

O’Connor’s dissent (and Becker’s response) depend on a preëxisting distrust/dislike of government in order to make their case. Jett’s language, here, is also telling. The given is that “I’m terribly uncomfortable with the government taking away people’s stuff, for any reason, at any time,” and now it’s made somehow worse by the fact that the government, which is already robbing citizens by lowballing the compensation on takings (a true fact, but problematic—it’s theoretically impossible, as Becker and Posner note, to come up with a “fair” price in a taking, since if such a price existed, condemnation would not be necessary), seems to be doing it to create a development that “is going to be profiting a mega-company like Pfizer.” Jett, sorry, but you’re showing a total distrust in the ability of the government to make a sound decision, at least to me.

But this is the structure of the debate over government in our time, and that’s what makes O’Connor’s dissent all the more disingenuous. I suppose to a degree all dissents are like, “how fucked up is gov’t that we can’t even rule this one right?” But O’Connor takes it a step into pure sophistry:

The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.

And this is the genius of the radical right-wing (which, today, includes the practically sainted O’Connor). First, the New London development is misrepresented (something Jett continues in his post). It’s not just a development for Pfizer. There will be parks, a museum, etc. As a result, this case is presented by the conservatives to be something like Walmart v. the poor homeowner who has lived a century in her home (Kelo herself has only lived in her home for eight years, and, as O’Connor notes, was interested more in the principle of the taking than in the taking itself, granting that the plan would be good for New London; this is why the libertarians pumped legal support into the case and brought it up to the Supremes). As such, the traditional, “liberal” response is to back the little guy. Fuck Walmart. They are the devil.

But that’s a canard perpetuated by the O’Connor dissent. Pfizer didn’t ask to be located there—New London wooed them with the plan and the promise of new jobs (not just tax revenue). The NLDC was recertified in January, and Pfizer announced the location in February. O’Connor misrepresents the facts on her side of the argument. Additionally, the plan was for mixed-use, including a riverwalk and other recreational improvements. This is not taking A’s property to give it to B, despite what O’Connor would have you believe.

Furthermore, note O’Connor’s sneaky condemnation of “large corporations,” or, at least, her aligning with the little guy. This is ludicrous—the reason corporations can be “large” and can be threatening our social structure is precisely because of the Supreme Court’s misbehaviour in Santa Clara County v. Southern Pacific Railroad. And to suggest that the conservative wing of the court disagrees with the above strikes me as, well, disingenuous to the extreme. But that’s the game O’Connor is playing with her language.

There is also one final turn in that quoted piece from O’Connor, where she seems to suggest that this is, to a degree, an equal opportunity case. The poor little guy does not have access to expensive lawyers, unlike Pfizer. As such, the rich will always win. And people are buying into this argument? Like above, with the bribing, how is this different from the way things are now? O’Connor’s dissent is a cynical piece of work that makes those who already distrust government distrust it more, and for new and different reasons.

I mentioned earlier the slippery slope argument. O’Connor plays to this, also, when she makes, explicitly, the A-to-B property transfer, which is, as (again) Stevens notes, not the case here. When the government does ok an A-to-B transfer, by all means, sue then. But there is a slippery slope in the opposite direction. As I noted above, the Constitution-in-Exile crowd is using this case not out of some actual interest in government helping build communities. They want tests on takings to limit not abuses by Walmart, but takings themselves. This is the trap Stevens deftly avoided. If the court were to impose a limit on taking, then it begins the eroding of the power of the government to take.

I can’t underscore this enough. Kelo is not about big business vs. the little guy. It is about the government being able to act in the interest of the common good. it was an effort by libertarians to chip away at the government, not an interest in reining in corporatism. Stevens’ opinion is not pro-Walmart, it is pro-government. O’Connor’s dissent is anti-government, while trying to appear pro-little guy. When the populist rage explodes in 2006 and Democrats are pitched as the evil people who are in favor of the government taking your property whenever, remember that that’s the spin of the conservatives, and nothing else.

Imagine a world without eminent domain. The state could not condemn anything, and would be unable to do anything for the public good, leaving control of roads, etc., to private corporations. This is the goal of the Constitution-in-Exile crowd, not checking Walmart.