June 24, 2005
PROFESSOR BAINBRIDGE has an article on the Kelo decision in TechCentralStation today. That was fast!
I'm still getting a lot of angry email, and as noted below, the decision seems to have angered people on both left and right. It's true, as Eugene Volokh noted on Hugh Hewitt's show last night, that it was only a modest extension of existing law. But I think that existing law has moved, by gradual increments, to a point where it's out of step with the Constitution and with public sentiment about what's just. Sometimes a Supreme Court decision, even one that doesn't make new law, can bring people's attention to a situation and drive efforts to change it.
Some people are comparing this with Dred Scott, but that's a bit over the top. A better analogy might be the Bowers v. Hardwick decision, which didn't make new law, but which led to a sea-change in public attitudes. One difference is that Bowers was consistent with the law going all the way back, while the 20th Century takings doctrines were not. As Joseph Story wrote in 1833:
It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint.
And yet that's the law now: The rights of property are left solely dependent upon a legislative body, without any restraint. Small wonder that it's inspiring a lot of unhappiness.
Check out the Kelo topic page at TTLB for much, much more on the decision.
UPDATE: The New York Times is editorializing in favor of Kelo, but has a huge conflict of interest here as it's engaged in self-serving eminent domain procedures itself.
And here's a state legislative response.
Heh: "So according to recent Supreme Court decisions, the government has no business in your bedroom (unless you're growing marijuana), but they can drive a bulldozer right through it?"
I'll tell you why the Kelo ruling hits especially close to home this week. The other day, FBI agents raided the Dallas City Hall offices of two city council members, as well as the office of a rich and politically well-connected developer who has built lots of housing in their districts. The FBI is being quiet about what they were looking for, but news reports say it's part of a federal investigation into bribery and suchlike. Nobody has been charged -- yet, anyway -- but if the speculation proves out, this stands to be an infuriating example of what businessmen with money can get done when they have corrupt pols in their pocket. I know, I know, this stuff happens every day, all over the place. But the FBI raids on Dallas City Hall have been front page news here all week, and the nefarious potential connection between private and public power and corruption has been on everyone's mind here in Chinatown, I mean Big D.
Yep. There's a lot of corruption in local government, particularly where development plans are concerned.
Now that development interests officially trump property rights, I think it's natural to wonder, "What trumps development interests?"
Follow the link for the answer. Here's more suggestion of left-right agreement on this decision. And there's more here.