Move every house, for great justice

Continuing on the last post, today. I didn't mean to, but I found that I'd really added insufficient commentary when I wrote a reply that just kept growing to the following comment from Andy:

Have not, under the power of “eminent domain”, the local, state and federal governments been “taking” and (under)paying citizens for land for many, many years?

I think that it has only come into the public sphere, if you will, lately is for two main reasons.

First, there is so little undeveloped land left that wherever a project is planned to go there is already something there. There are no “empty” lots left in or around DC. There is very little farm land left to be sold. A new project must now replace something else.

This leads to the second point. They are now taking land that is no longer just owned by the poor, or in building that are inhabited by the poor. These projects are going into areas where middle class people now live. Now, I’ve never been one to jump up and defend the poor mind you, but it will tend to make more news etc. if it’s happening to others.

Eminent domain, in and of itself, is less of an issue to me than the way it gets used. The government has indeed been taking land for years — probably since about the time they crumpled up the Articles of Confederation — but mostly in the spirit of its intent. As it was framed, the government could take your land (with compensation - I don't know exactly how just said compensation tends to be) for public use.

If recollections of my education haven't completely fogged, I think they have the burden of showing that they really do need your bit of land, and that no other bit of available land would do. I think that condemned and chronically vacant buildings as well as vacant lots qualify as "available". They couldn't likely take your house to build a playground on it - there's got to be lots of places they could put a little park. They might be able to take it to build a school, if there just wasn't available land in reasonable proximity to the place needing it. If they're building a new interstate and need your little stretch of land to connect it, they can very likely pry it out of your hands to complete the project. Or at least that was my understanding of the old eminent domain.

Up to this point, I don't really find that unfair, as long as the compensation really is reasonable. It may suck to have it happen to you, but government needs to be able to provide some things, and it might require the occasional sacrifice to allow them to provide it. It's probably true that eminent domain was more often applied to "poor properties" in the past, since they've got to be cheaper to compensate. It's probably also true that middle and upper class property are more squarely in the sights of the new eminent domain since the limit is no longer public budgets, but whatever private interests are willing to spend. I don't think the class difference is really the issue that makes Kelo* a bad juju, though.

What Kelo established is that the government can take your land for the public good. This is not at all the same standard as "for public use", is the root of the controversy around the decision, and the source of the disagreement that yours truly has with this mockery of jurisprudence. If your block generates $30k in taxes, and a developer wants to put in a plaza that will generate $80k in taxes, Kelo gives the government standing to take the land from you and your neighbors. Could an honest reading of the new interperetation even find an obligation for the government to take it? I've seen nothing to suggest yes or no, but I infer from the standard of a "public good" that it could be so.

Additionally, as that scenario implies, the land doesn't have to be earmarked for public use - it can be taken for the purpose of transferring it to another private individual, as was the case in New London and is the case in Los Angeles. In Los Angeles, they're just taking a somewhat circuitous path to it instead of the direct route that Kelo provides, and dumping millons in public funds down the crapper to boot. Regardless of whether that was the path intended when they aquired the property, that would be the objective result, and it's why that particular story knotted my tighty whities. If it could unintentionally evolve into such a process, then it could intentionally be crafted into such a process, and that needs inhibiting.

Moving beyond the potential for exploitation and corruption though, this term "public good" is poisonous and fraught with danger. What is public good? There have already been reportedly over 30 invokations of Kelo since the decision last year - it would be interesting (and likely instructive) to see the range of ideals offered up as "public good". In New London, it was tax revenue. In D.C., maybe it's convenient shopping. The Supremes may have laid out explicit guidelines defining public good; I haven't read the text of the decision, and it's possible that they weren't entirely derelict in the execution of their duties, but the Kelo standard alone is an overreach.

This new interperetation of eminent domain moves from being an exception to our right to own property, to rendering that right practically meaningless. Jobs could be considered a public good just about anywhere; if that's an acceptable standard, this would mean that any commercial development whatsoever can use the government to take your home if they think you're sitting on a choice location. The only people with sacrosanct land ownership rights are now those who provide the most of this enigmatic "public good".

The Supremes' vote was an ideological split, and I'm perhaps naive and idealistic enough to hope that this kind of judicial imagination left with the liberal majority. This is just one in a string of liberal inventions that needs to be challenged and overturned - I only hope that the Lost Liberty Hotel can be completed first. Plan a vacation there!

* The U.S. Supreme Court's Kelo v. New London decision. Not to be confused with Mark "drag tackle" Kelso, the Gazoo-helmet-wearing free safety of the Buffalo Bills from the late 80's to early 90's who weighed slightly more than a regulation football. Kelo v. New London has not yet been seen being carried towards the endzone by any wide receiver of the NFL.


All of which, of course, is just a pretext to get some Friday Frickin' Cat Blogging done!

Pumbaa!