There is a lot of conservative agonizing about Kelo, but it’s a less dangerous decision than others that have come down the pike. Kelo allows the government to take private property for the purpose of transfering to other private property owners. This seemingly violates the takings clause, which does not allow taking for public use without just compensation. The question here is whether a government-sponsered private development, designed to revitalize a downtown area, increase tax revenues, or otherwise help a city’s quality of life is a public use. Conservatives, who are otherwise skeptical of “unelected judges,” have hopped on the hate-fest, denouncing this case as the end of “private property.”
It is no such thing. First, the various decisions allowing de facto takings through environmental and land-use regulations have been far more damaging. Lucas v. South Carolina Coastal Council did not classify the prohibition on building anything on certain beach front property to be a takings so long as it had some permitted uses, which included such paltry rights as the right to exclude and pitch a tent.
Small government conservatives might also want to consider the insights of the public choice movement. It’s axiomatic among public choice theorists that concentrated benefits and dispersed harm creates a structure that encourages more government spending on a wide range of economically inefficient programs, such as farm subsidies and tariffs. Some have suggested that compensation for takings–whether in this context or others–should be substantially above market, to dissuade takings. If takings are overcompensated, wouldn’t that lead to more takings, and therefore more government spending and less security for private property, as property owners vie for the windfall. In contrast, undercompensated takings would (as they do now) lead to public protests and other resistance that often makes it too politically expensive for a particular takings to take place. In other words, it’s not so obvious that government is a rational actor, whose profligacy would be slowed down by the penalty of market-plus compensation. It’s far more likely this would be gamed to increase government spending and inefficient wealth transfers.
Some form of eminent domain is necessary. It should be used sparingly. It is an exception to a more comprehensive component of a free society: the security of private property. People’s subjective attachment to any particular piece of private property is a real phenomenon. Secure property rights are necessary for a happy life, economic gain, and, for most, allowing a zone of privacy in which one can live his life without undue and unexpected interference. It’s particularly ill-conceived for government to use eminent domain when government is acting in a proprietary capacity, buying a small tract for a school or post office. These can and should be dealt with through voluntary deals. On the other hand, it’s absolutely necessary to build roads and other networks. Without eminent domain power, individuals could hold the government and the broader society hostage when they realize some tract is the keystone of a public network. When they would otherwise have accepted, say, $100,000 in the case of a private land-sale, they would instead demand $1,000,000 when they know how valuable the network is to the public. Economists call this a bilateral monopoly situation. Clearly, most private developments do not meet this standard.
It’s far more likely these plans are either a species of graft or an ill-conceived form of central planning, something that seldom works, as evidenced by a host of money-losing stadium deals and similar government-funded behemoths. That said, it’s far more likely that inefficient and undercompensated wealth transfers will take place through regulations that take away certain economically valuable rights without any compensation whatsoever.
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But I don’t see how you can simply dismiss Kelo as not a big deal, though.
You can make a fair argument that certain “reforms” to the ED system would fail at the stated aim of discouraging its overuse, but you never finish making the point that this decision proves fundamentally bad for private property, save for the fact that “there’s been worse.”
It doesn’t matter if there’s been worse – this one’s pretty noxious in and of itself. Are you prepared to argue that a local development authority having the power to simply condemn private property and hand it over to other private parties simply for net tax gain is a good, much less conservative thing?
The whole argument just comes off as contrarian for its own sake.
Why is this so bad? If your takings are compensated is that not a good thing? Is it really likely that a democratic government will be able to harm its own people that much when each of them are getting fair market value for property taken? They might be collectively screwing themselves, spending money where they should not, but compensated takings are very low on my list of priorites.
Second, where are all the originalists and textualists when this whole takings business is applied against states and localities through the 14th Amendment. Whatever happened to the police power? Whatever happened to our railing against incorporation?
Finally, on the merits, I can think of sometimes this should be allowed. What if the government wants to give a utility common carrier ceratin eminent domain powers; is that the end of the world? They’ve had that power for years, and that’s why we have cable television, telephones, gas lines, fresh water, and other workable networks.
Let me address the issues one by one.
First, “why is it so bad if you’re compensated” ignores the whole injury in the first place – it takes the entire decision away from the property owner to begin with. Should it not be the first and final prerogative of the property owner to choose when they wish to sell and under what conditions? Otherwise, just what do property rights amount to, save for simply a matter of equity that can be disposed of at the whim of a local bureaucrat?
You made the point yourself – there is in fact a great value to subjective attachemnt to property. So absent an utterly compelling reason to void this – which we take to be genuine “public use” which cannot be trivially located (say, roads) – shouldn’t this be reason enough to reject public takings for private gain?
You ask whatever happened to police power – but again, isn’t the pre-requisite that the power is being legitimately applied in the first place? So is it not appropriate to first ask whether the takings are appropriate before we start granting such wide deference?
Third, isn’t there a pretty wide amount of difference between common carrier and simply handing over property part and parcel to private developers? Are you really, seriously trying to conflate the two of these cases together?
Personally, I take the very limited view that public use means public USE – not public “benefit”, not economic gain, not community welfare, but actualy public USE.
But while common carrier at least makes the pretense of public access, this doesn’t even do that.
So, how is it in any way a conservative principle to grant the government carte blanche authority to take private property for the sake of private gain? How does this NOT leave us with little to no restriction on how the power of eminent domain may be applied?
The outcry over the last 48 hours demonstrates the extent to which gov’t takings are, like taxes, social evils that we grudgingly accept for limited uses. It’s helpful to have this case out there essentially ratifying current law b/c it makes folks remember how powerful gov’t is and then causes them to be more likely to resist it in the political realm. So, forget about whether the courts are going to fix this. IJ should keep bringing these cases b/c of the political benefits OUT of the courts.
See also my piece: A Libertarian Defense of ââ¬ËKeloââ¬â¢ and Limited Federal Power.