June 26, 2005

A very conservative, pro-Kelo voice.

John Derbyshire on Kelo:
As conservatives we are of course all watchful for, and suspicious of, overweening state power. Governments do sometimes need to be able to act, though. The Tory in me appreciates what a British Prime Minister (though not a Tory) once called "the smack of firm government," when it's appropriate.

There are quite large areas of public life where the problem is not the govt doing too much, but govt frustrated in doing anything at all. The state of public works in New York City illustrates the point. It's little short of miraculous when govt here gets ANYTHING done, let alone a major public works project. (Look at the decades-long struggle to set up public toilets for the use of New Yorkers.) Yes, yes, I know, the Connecticut decision involved private development, not public works, but the eminent domain principle apparently comes in to both cases. Consider the paralysis over the World Trade Center site. If use of urban land were not such a tar pit of regulation & litigation, surely a vigorous govt, exercising eminent domain, might have done something with the site by now.

Yay for private property rights and down with govt usurpations. No argument about that as a general principle. When govt needs to act, though, it ought to be able to do so without unnecessary impediments & infinite delays, & private citizens, properly compensated, should yield their rights.
Well put.

18 comments:

Jonathan said...

If the government wants it, let the government buy it at the market price. Eminent domain forces arbitrary individuals, who happen to own property that the government wants, to pay a disproportionate share of costs that should be spread equitably across the taxpaying public.

Supporters of ED argue as though ED keeps costs of reasonable governmental property acquisitions from getting out of line. In fact all that ED does is hide some of the costs by forcing property owners to eat them. That's abusive of the property owners and creates perverse incentives for government officials.

If the NYC government wanted to buy the WTC site it should have just bought it. If NYC's excessive regulation of property use is causing problems, the way to resolve them is to cut the regulation, not to seize property (or to award a windfall the the WTC site's current owners, as also might have happened in some cushy buyout deal). Anyway, the WTC-site fiasco is a result of mismanagement by the NYC government. Using government fiat to "get things done" in such situations is a cure that's worse than the disease.

John Thacker said...

There are problems with someone being the last holdout and extracting a massively high price, extracting all the benefit from the new use of the land-- that would ensure that improvements don't get done; on the other hand, there are clearly problems with government taking something away for private benefit. There's a proper balance to be struck, but I think that the decision went too far.

On a side note, Mr. Derbyshire is a dissenter here because he is remains, fundamentally, a Tory.

Ron said...

Ann: I think this is one of the few times that when you post on something, I have tended to agree more with the commenters than I do with you. I'm still a bit in the dark as to what your position is here. I've reread your Kelo posts, but I somehow feel you haven't addressed the concerns of those who are objecting to your(?) stance. This post helps somewhat, but perhaps a bit longer blog posting will help?

Just a suggestion.

twwren said...

Ann:

Derbyshire makes a good policy argument but do you believe that Kelo was correctly decided as a matter of law?

Ann Althouse said...

Twwren: Here's my post on the legal issues in the case. I don't have a precise opinion on whether it was "correct," but I don't think it's a bad decision. I find the outcry overdone and many of the statements about the majority opinion inaccurate, as you can see over there as I try to engage with some of the commenters. There are over 100 comments there, so take a look.

Ron: I am absolutelly not going to write a longer post about Kelo. I'm not going to "litigate" this case with the commenters. Too much, already!

Jonathan: I don't see the charm of having the government own and run everything.

Joe said...

Eminent Domain kills old ladies and gets people shot j/k

This article is nine years old, and we know the curse was likely ineffectual, but many folks here in PHX remember Beatrice Villareal.

Here's another article on the eminent domain process when Bank One Ballpark was built.

I think people understand eminent domain in some situations. At Bank One Ballpark, a section of airspace over the Southern Pacific rail tracks was condemned so that a skybridge could connect the stadium and a parking garage.

That seems vastly different than running an 87-year old woman out of the house she's lived for 80 years. When they start tossing homeowners and small businesses, that's bordering on tyranny.

Oh, and Bank One Ballpark was built despite the voters rejecting it. Maricopa County then created a "Stadium District" and approved new taxes to build it. Nice end-run. County owns it, and leases it out (to the Diamondbacks for 81 dates a year, and then finds a boat show or Luis Palau revival to make it seem like a multi-use stadium.

Mary Rose Wilcox was on the Maricopa Board of Supervisors and voted for the stadium tax. In 1997, she got shot in the booty by a lunatic who claimed her stadium vote was the reason.

Ron said...

Ann: I respect your lack of desire to 'adjudicate' the commenters! I get facinated when there seems to be such vigourous discussion, but ok, 'Nuff said!

Ann Althouse said...

Joe: Hope the Supreme Court knew about the Wilcox shooting. That's the sort of thing that belongs in constitutional interpretation. Really, the courts ought to become involved in micromanaging city government using the Takings Clause -- think that would go well?

twwren said...

Ann:

Thanks Ann. I did read your post and probably most of the commentary at SCOtUS Blog and elsewhere. I would be particularly interested in your opinion of Professor Adler's views expressed at The Corner. He has reluctantly come to the view that the majority’s decision is more an originalist view than is Justice Thomas’ dissent. Briefly, he argues that the historical record supports the view that “just compensation” was the crux of the Takings Clause, not “public use". According to Professor Alder, the clause was inserted to clearly differentiate "takings' that require compensation from those that don’t such as confiscation for non payment of fines or forefitures because of tax liens. He points out that requiring just compensation was a very real impediment to a Federal government that, at the time the Bill of Rights was passed, itself sometimes verged on bankruptcy.

Regards.

SippicanCottage said...
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Joe said...

I'm not qualified to argue the legal merits of the case.

But when I hear about "constitutional interpretation" I quickly think of the Wigged Wonders who wrote it...we ought to dig 'em up and put 'em on spits so they can spin faster when these kinds of things happen.

I understand that the city had a "carefully formulated" plan, and that it could "benefit" tax revenue in the future. I also understand that an individual could "hold up" such a plan indefinitely.

What I don't understand is how the highest court, led by the liberal members could transfer property from the poorer, weaker members to the strong and rich so they could increase their power and wealth.

And I really don't give a dang what the law says about "just compensation." The only one I give any weight is the one agreed upon by the buyer and seller.

Ann Althouse said...

Joe: You're changing the facts of the case. The "public use" asserted wasn't just increased tax revenue. The test you say you prefer would write eminent domain out of the law, but eminent domain is an ancient govt power predating the Constitution. As for the Constitution's framers, that is the framers of the Bill of Rights, they did not think they were limiting the power of the states at all, only the federal govt.

Justin said...

Professor Althouse -

Wasn't Kelo just Poletown? Wasn't the decision just Poletown, sans the language that Poletown was a special case? Shouldn't we have been aware that the court would do this - eventually - from the outcome of that case?

Personally, I think both decisions are wrong, and I believe that the Kelo outcry - although overdone because the ruling wasn't that much of a change from the status quo - is a good thing, for it is helping the masses realize how far the court has allowed the government to push this area of law to their advantage.

SippicanCottage said...
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Justin said...

More power to me: Poletown was overruled in 2004.

Check it out: http://www.ij.org/private_property/michigan/7_31_04pr.html

Ann Althouse said...

Justin: Yes, and Poletown is a matter of one state's constitutional law. After Kelo, the states are free to provide more protection in their own law, which is the way the US Constitution's framers thought citizens would be protected from abuse by state and local govt. This is why Kelo can be viewed as a federalism case.

SippicanCottage said...
This comment has been removed by the author.
Richard said...

"Well put," you say? I read the whole thing and Mr. Derbyshire doesn't really say anything. Basically he disses NY City for be incompetent boobs, but there's nothing new there. If NY City's boobs are the only thing you can come up with to support Kelo, I'd say Kelo is a pretty bad decision.