Blogs > HNN > Don't Forgive Them, for They Know Exactly What They've Done: A Comment on the Kelo Case

Jun 26, 2005 2:32 am

Don't Forgive Them, for They Know Exactly What They've Done: A Comment on the Kelo Case

Several HNN bloggers, among them Aeon Skoble , Ralph Luker and David Beito , have already commented at length on the Kelo vs. New London eminent domain case. Predictably, I agree with them in deploring the decision in the case. But condemnation aside, it’s worth asking what broader lessons we learn from the Court’s reasoning. My text here is The New York Times’s lead story yesterday , along with its lead editorial . The lead article begins as follows with some straightforward factual description:
WASHINGTON, June 23 - The Supreme Court ruled on Thursday, in one of its most closely watched property rights cases in years, that fostering economic development is an appropriate use of the government's power of eminent domain.
The 5-to-4 decision cleared the way for the City of New London, Conn., to proceed with a large-scale plan to replace a faded residential neighborhood with office space for research and development, a conference hotel, new residences and a pedestrian"riverwalk" along the Thames River.
The project, to be leased and built by private developers, is intended to derive maximum benefit for the city from a $350 million research center built nearby by the Pfizer pharmaceutical company.
New London, deemed a"distressed municipality" by the state 15 years ago, has a high unemployment rate and fewer residents today than it had in 1920.
The owners of 15 homes in the Fort Trumbull neighborhood, including one woman who was born in her house 87 years ago and has lived there since, had resisted the plan and refused the city's offer of compensation.
After the city condemned the properties in November 2000, the homeowners went to state court to argue that the taking would be unconstitutional. The Connecticut Supreme Court upheld the use of eminent domain in a ruling last year.
In affirming that decision, the majority opinion by Justice John Paul Stevens resolved a question that had surprisingly gone unanswered for all the myriad times that governments have used their power under the Fifth Amendment to take private property for public use. The question was the definition of"public use."
Consider some of the inferences we can draw from this material about the assumptions of"the other side." These are among the things they believe, want us to believe, and want written into the laws of the land.

Assumption 1: As Aeon Skoble has aptly put it, the most prominent assumption here is that property rights don’t exist. Instead, property rights can be violated, on quasi-utilitarian grounds, for economic development or “public benefit.” Notice, incidentally, that neither “economic development” nor “public benefit” can be or are defined with any sense of precision. The salient point is that whatever they are, we know we have to violate rights to achieve them.

It's worth asking what conception of “benefit” lurks behind these assumptions, which brings me to my next thought….

Assumption 2 : Whatever New London's concept of “public benefit” means, it emphatically does not include respect for rights. On the majority's view (and New London's),"public benefit" somehow arises when you violate rights--not when you respect them. Nor does"public benefit" involve a harmony of interests. On the notion of"public benefit” in play here, one group’s “benefit” requires another group’s harm--it can't be achieved by mutual benefit. Finally, “benefit” is principally about, and measured by, money. As in: Mo’ money, mo’ benefit; no money, no benefit. Evidently, if you cannot measure benefit economically, it does not exist. Since there is no economic way of measuring how bad it feels to have your cherished home transformed into a"riverwalk," the cash that (future hypothetical) riverwalking pedestrians spend while cruisin' the riverwalk necessarily overrides the most intimate memory you might have had of living in your house.

One of the things I find most ironic about Assumption 2 is that the contemporary thinker most fanatically opposed to it was that supposedly evil money-grubbing predatoress, Ayn Rand . The deeper irony is that having spent a lifetime disputing it, she is accused--by its proponents--of promoting it. But I guess that's a topic for another day.

Assumption 3 : The government can wield powers whose limits “surprisingly go unanswered” for centuries--and when clarified, cause forced relocations. I might add that one reason they “surprisingly go unanswered” is that when anyone rises to ask the relevant questions--e.g.,"Isn't eminent domain problematic?"-- they are immediately slandered as “property rights extremists.” The image that sticks in my mind in this respect is Sen. Joseph Biden’s holding up a copy of Richard Epstein’s Takings at Clarence Thomas's confirmation hearings, and declaiming about the property rights fanaticism contained therein .

Assumption 4: Human habitations can be “condemned” for the crime of existing.

These are the basic philosophical underpinnings of the winning side in the Kelo decision. Not a particularly edifying conception of the human good, but at least we know what we’re dealing with: act-utilitarianism of the crude variety taught (and refuted) in every undergraduate ethics textbook ever written. Theory and practice at work! Anyway, let’s continue through the mire.

The article goes on to quote the majority’s reasoning, as follows.
"Promoting economic development is a traditional and long accepted function of government," Justice Stevens said, adding,"Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."
But protecting property rights is also a long accepted function of government. Why then is there a basis for exempting property rights from our traditionally broad understanding of public purpose? No answer, alas. I guess it wasn’t so “broad” after all.

Both the Court and the Times’s lead editorial make much of the fact that the city was “compensating” the homeowners for seizing their homes. The assumption here seems to be that justice can somehow be served by violating someone’s rights, then compensating the victim for the violation--at a rate of the violator’s choosing. Apart from the moral unjustifiability of this principle, the Times in particular shows an amazing disingenuousness in pretending that full market compensation is actually offered in such cases. That claim, to borrow a phrase of Harry Frankfurt’s, is utter bullshit , and it’s hard to believe that people as sophisticated as the Times’s editorial writers can (try to) feign ignorance of it. But I await their “News Analysis” on this topic in the near future.

I am not generally a fan of Justice O’Connor’s legal reasoning (she is, to my mind, particularly bad on abortion), but every quote of hers that I read deserves applause.
In a dissenting opinion, Justice Sandra Day O'Connor objected that"the words 'for public use' do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power."
Justice O'Connor said,"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."
The first paragraph, of course, is a reductio ad absurdum of the very idea of eminent domain, but never mind. The second paragraph is stated with exacting precision. The Times flails haplessly against it by calling it an “exaggeration,” because (it says) according to the decision, eminent domain cannot be used for “purely private gain” (my emphasis). But the word"purely" in the phrase “purely private gain” has no meaning in a market economy. Every economic gain benefits the public to some degree, and is therefore to that degree, “public.” Given that, if the court’s operating principle is that property rights can be violated for economic development, Justice O’Connor’s argument is unanswerable.

Let’s step back and ask what we learn from all this. The lesson is encompassed in the title of the Times’s editorial, “The Limits of Property Rights” (proclaimed with rather untoward glee). A bit of reflection uncovers the covert meaning of that phrase. In fact, properly conceived, no right needs to be"limited." Rights are a limit, principally on state power but primarily on the use of force, and they are inviolable within their domain.

The phrase “the limits of property rights,” is actually an elliptical expression for the idea that what should not be limited is the state’s capacity to use force for economic purposes. We must be flexible enough to allow that to be unlimited. Property rights are fine, we are being told, so long as they can be violated at whim and with impunity, as the Times itself confesses to have done in expanding its own facilities in Manhattan. (I await a sidebar or “News Analysis” on that topic, too.)

A violation of one right is an attack on rights as such. So the question to ask of those in favor of this decision is: how consistently will they be able in the future to defend, say, procedural rights for the criminally accused? If property rights can be violated for economic development, why can’t protections on “civil liberties” be violated for purposes of criminal justice or national security? For that matter, if the Times can make use of eminent domain to expand its facilities, why can’t readers violate its copyright for the better dissemination of knowledge? Don’t expect “News Analyses” on any of these questions, either.

In a separate article , the plaintiff in the case, Susette Kelo, is quoted as follows.
“I am sick,” said Susette Kelo, sitting on the porch of the pink Victorian cottage that she bought on her nurse’s salary eight years ago. “Do they have any idea what they’ve done?”
I wish I could console her, but I can’t. Because the really sick thing, Ms. Kelo, is that they do.

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Oscar Chamberlain - 6/28/2005

To say that the Kelo decision means that property rights don't exist is not true. If that were true compensation would not be required.

What is true is that in the the federal constitution and most if not all state constitutions, the right to property is clearly limited by the government's power of eminent domain. Consider that for a minute. Free speech has no such stated limitation. Neither do the judicial rights against seach and seizure, self incrimination, and so forth. Yet these rights are balanced--sometimes well, sometimes badly--by the need to protect the public.

You suggest here and elsewhere that the right to hold property--which has a specific limitation in our constitutions--should be more absolute than other rights, that have no such stated limitation. I think that is wrong (in the sense of being a poor interpretation of the constitution).

The court had to decide whether or not to overrule a state's interpretation of "public purpose." They declined. In doing so they let stand a pretty lousy use of eminent domain. But they understand that, despite the considerable efforts of Justice O'Connor to create a distinction between this use of eminent domain and other uses, to overturn a government's interpretation of "public purpose" in this case would create more problems that it solved.