The Supreme Court has expanded eminent domain to the point of absurdity and invited corruption.
I was just getting ready to write a long and involved post on Kelo v. City of New London, the Supreme Court decision extending eminent domain, when lo, Andy beat me to it. So I’ll try to keep it short (for that, Andy, our readers thank you.)
I do not share Andy’s ambivalence. I think it’s a terrible thing. I’m all for eminent domain, but this is ridiculous. Kelo crosses a fairly bright line for me and gets my nascent libertarian instincts all fired up.
More below the fold.
In essence, SCOTUS said that the government can take private property in order to replace it with more profitable private property — or rather, private property that promises to be more profitable, some day, and maybe create some jobs too. More simply put, government can take private property for any %$! reason it feels like it.
Now, it’s true: Having a mall and some condos is probably more beneficial to the community than having a few small, low-income private residences. It will generate more taxes, and probably lead to more economic development.
But follow that line of thinking even briefly and you get into scary territory. It is, after all, the case that taking any private property and replacing with any more tax-generating property is beneficial to the community in this way. If your house is sitting where some rich developer wants to build a mall, why can’t the government boot you out and give your property to him? Because you’re white? Middle class? Well-connected? You better hope so.
I don’t see a slippery slope here; I don’t even see a slope. It’s a flat plane: Everything is fair game. Only the forbearance of local government officials guarantees private property owners the right to their own property.
Andy quoted Justice O’Connor’s dissent, but since she gets right to the heart of the matter, it’s worth quoting again:
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. 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.
Local officials now have the power to confiscate any property they deem standing in the way of economic development (with the impossible-to-enforce proviso that the owner is "fairly compensated" — what’s fair compensation for, say, a house your father built?). This power makes corruption and manipulation by the wealthy and connected inevitable. It fairly begs, almost requires, to be gamed and misused.
You may think your local government officials will only do right by it. Maybe they’ll tear down slums and build low-income housing with green roofs. Maybe. A few of you might be right.
But this is power in the hands of human beings, not angels, and as such money will act as a tidal force, pulling always in the direction of more heedless development at the expense of the most vulnerable in its way.
I acknowledge that I’m no legal scholar and there are probably precedents and aspects of the case I don’t understand. But on its face it strikes me as a gross violation of individual rights and an invitation to cronyism and corruption.
For more on Kelo, you can read the Justices’ arguments and Slate‘s summary of the arguments. For outraged blogospheric comments from libertarians (and quasi-libertarians), see Julian Sanchez, Patri Friedman, Jim Henley, Thomas Knapp, Steve Verdon, Eugene Volokh, Stephen Bainbridge, Will Collier, SCOTUSblog, Todd Zywicki, Orin Kerr, and Don Boudreaux. For outraged comments from progressives, see Mark Leon Goldberg, Belle Waring, and Jammer (good discussion under this one). For contrarian — i.e., "don’t get so worked up, it’s not so bad" — comments, see Atrios, Matt Yglesias, and Scott Lemieux. There’s also a great roundup of reactions here, a very interesting online debate on Kelo at LegalAffairs magazine, and some mildly amusing satire here.