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I'm a big fan of Kelo. I think that generally it ought to be possible to force sales by holdouts at market rates, and I'm not averse to thoughtful civic planning, which would be impossible readily available eminent domain. That ranges from public transportation to - why not? - gentrifying declining neighborhoods by putting in Whole Foods, or what have you.

If anything, I don't get the opposition to Kelo. At all. I could see Kelo-rules being considered essential to a well-working real estate market, and what's so great about letting nut-jobs do whatever they want with their property anyway?

I think what scares me most about Kelo is the increased potential for abuse. It's entirely reasonable to believe that local governments will feel empowered by the decision to use eminent domain power more aggressively. As Todd Zywicki pointed out, politicians don't always have thoughtful civic planning as the only consideration in mind.

@David Zaring

If anything, I don't get the opposition to Kelo. At all. I could see Kelo-rules being considered essential to a well-working real estate market, and what's so great about letting nut-jobs do whatever they want with their property anyway?

Uh. You're not a Stalinist and you're kidding, right?

1) Real estate markets, or any markets for that matter work under a unifying principle -- trade. Trade, by definition, is bilaterally beneficial and moreover, voluntary.

Kelo is definitely not.

2) That's the whole point. 'Nut-jobs' can and should do 'whatever they want with their property' since it is THEIR property.

We call that property rights in a democratic capitalistic society.

I'll take a stab at saying why I'm not outraged at Kelo: there's no textual warrant for the opposite result. In particular, there's no basis I'm aware of in the amendment or its "legislative history" for thinking that "public use" means anything other than "something the government wants to do with the land." I'm a liberal, but I don't see why federal courts should invent a right to review of local and state government decisions about land use, particularly where there are other checks on those decisions (e.g., the requirement that compensation be paid, democratic control of local and state governments). If the amendment had said, "and by the way, the government can't turn seized property over to private developers," that would be different.

(And to preempt the trolls: no, being a liberal doesn't mean you think the text of the Constitution doesn't matter. I can distinguish Griswold and Roe from this case twelve ways past Sunday.)

>>"what's so great about letting nut-jobs do whatever they want with their property anyway?"

Dear Committee on the Identification of Nut-Jobs: I would like to submit to a psychiatric review to prevent the taking of my lonely houseplant, “Jeremy,” in the Kelo removal action, Case No AK-47-1917. Should my metal health continue to be of concern, I request that you deem Jeremy “not property” for the purposes of the Kelo removal action on the grounds of Jeremy being non-human companion. See 101 CFR 38(b)-1.

Kate's back!! I knew something was missing around here.

I think I would also like to see a definition of nut-job. I'm a little nervous.

It depends of what you mean by 'liberal'
Read Nathan Newman

Sorry - maybe not nut-jobs. Maybe just "hold-outs." I'd really rather have the city council deciding where the Best Buy is going to be than give veto power to Kate's plant (or cat) lady (or guy).

But that's just me! Some people think that property rights don't exist independently from the value society gives them. Which means that those people - like me and my fellow traveller Josef Stalin - don't have a very difficult time justifying "public" roles in the disposition of "private" property.

Especially when that public role is limited by the political process and rarely used, as is the case with ED.....

I don't have a problem with Kelo either, and was surprised at the reaction. The decision just said that the Constitution permits governments to take property for the public interest, even where the property is handed off to a private party. So, (1) there has to be a public purpose and (2) if a state or local government does something funky, there is always the electoral process (which seems to have been working pretty well on this issue judging by the number of state anti-Kelo laws that have been enacted).

Maybe those of us who have spent time living in New York will see things differently: the cleaned up Times Square would have been difficult or impossible had Kelo come out differently.

David: Should the government be able to take away my beloved houseplant if Best Buy wants that plant and offers to pay high taxes on it? How about a forced "purchase" of my wedding band at the market price? Or a forced "purchase" of my high school yearbook?

If people's reluctance to sell their homes at the market price is worthy of ridicule, why not call me a nut-job for not wanting to sell my wedding band?

I also hope you are not seriously arguing that past frequency of government action has anything to do with the justification for it. As in "we don't hang random people on the streets very often, so what's the big deal about officially permitting it?"

Glad to see so many positive comments on the Kelo decision. The comments from Drew and "Alkali" hit the nail on the head: the only reason to get mad at the Court's decision is if you think their legal arguments are wrong-- and nobody else here seems to be arguing that.

Of course, the possibility for abuse of eminent domain is undeniable. But that seems like a thing state legislatures should confront, and they're doing so en masse. State and local lawmakers are currently running away from their (constitutional) right to pursue takings for economic development as fast as they can-- and these takings (it seems to me from the frequent news stories on the topic) are more scrutinized now than ever.

Property rights are contingent-- they exist because government create them, and the price of these rights is that government has a marginal claim on them. The thing I want to hear is why takings are different from taxation in way that makes them clearly impermissible. Seems to me that asserting that disgruntled, holdout homeowners should have veto power over economic development projects is a step on the slippery slope toward the assertion that you shouldn't have to pay taxes for public spending areas you disapprove of. I think this is what the "nut job" comments are hinting at.

More non-economist, non-lawyer noodlings on this topic on our blog at http://www.ctj.org/blog/2005/07/taxation-and-takings-lessons-from-kelo.html and http://www.ctj.org/blog/2005/07/more-on-kelo-decision.html .

Kate - Yes to both of your questions. I'm seriously arguing that past performance is often correlated with future practice. Indeed, I daresay, frequently so. And I'm seriously arguing that there should be limits on the ability of people to harm the general welfare by idiosyncratically misvaluing their stuff. Or just by holding out in order to get overpaid for same stuff.

As for the wedding band parade of horribles, I'd be eager to hear of real-world examples of that sort of eminent domain. I'd consider rethinking if localities were willy nilly eminent domaining personal property. It would suggest that I'm wrong about the democratic process serving as a check on overuse of ED.

And Drew, I'm with you on Times Square.

But really, I'll let the anti-Stalinists have the last word!

Kate;

Can you provide the Constitutional "public purpose" that your town or county would use to appropriate your plant? I'm not trying to be argumentative, but I do think Kelo is misunderstood here.

I would never ridicule someone for not wanting to sell their home -- I would be very traumatized if mine were taken by the state -- but I don't think that the desire to remain in one's home should necessarily trump a public purpose in all circumstances.

Sorry - maybe not nut-jobs. Maybe just "hold-outs." I'd really rather have the city council deciding where the Best Buy is going to be than give veto power to Kate's plant (or cat) lady (or guy).

Why give the benefit of the doubt to the City Council to decide what should be done with someone's private property? I am pretty sure that I know what is best for me regarding me. If that is contrary to 'public' interest. Tough.

BTW You are aware that you are promoting State coercion against a private citizen who has done nothing illegal?

(http://www.reason.com/sullum/102904.shtml)
"What galls me is the developer is taking my land so someone else can live here," Kelo says, noting plans for new housing units. "I'm not good enough to live here, yet someone else is."

Why not the democratic and voluntary forces of the market?

The decision just said that the Constitution permits governments to take property for the public interest, even where the property is handed off to a private party. So, (1) there has to be a public purpose

This was meant to be defined as narrowly as possible.

'Public purpose' is ill/subjectively defined - and prone to abuse. What does that mean? Pretend I own a hot-dog stand on a lot that I bought 10 years ago. I make a loss every year and a developer wants to buy it from me. I do not want to sell as its value to me is greater than the developer's offer.

If I am a hold-out - well, I am a hold-out. Tough for the developer. He can go build elsewhere.

Forcing me to sell is then unjust and immoral. Just b/c the developer and the 'public' are to gain from it - does not permit nor make it moral for the State to encroach upon my rights to private property.

NB: It is exactly b/c property rights on average ARE respected in the US of A that US of A is an economic titan (see Cuba et al for the contra-posite). The Kelo decision seeks to erode those rights -- Jefferson would shit himself were he alive to, upon seeing his precious document interpreted so poorly.

On ED abuse.

http://www.reason.com/0510/co.mw.why.shtml

Drew: the "public purpose" in Kelo was to increase the city's tax and other revenues. So, if the forced transfer of my houseplant increases the city’s revenue, it would fully qualify as “public purpose.” For example, if some posh hotel decides that my rare peony is exactly what their lobby needs, they can offer a nice “fee” to the city, and goodbye, my peony!

More realistically: goodbye, my rare painting, my grandma's antique wedding china, my collection of Mark Twain’s letters, my Stradivarius violin, or my shoes-worn-by-Elvis. I am sure there are lots of art dealers/galleries/museums/night clubs out there who would love to acquire people’s property by force, by paying some poorly specified “market price” plus a modest fee to city bureaucrats.

The fact that this sort of abuse wasn’t happening before is probably due to the popular belief that it would be illegal. Not anymore.

Kate;

Have you read Kelo? Actually, the City of New London was able to establish during the litigation that the neighborhood was distressed economically and had other social and economic problems that persevered despite efforts by the government and private efforts. Converting this particular property was a very efficient way of creating new jobs and more prosperity, which are in my mind legitimate state goals. The plans were developed systematically, with input and transparency.

If your plant is preventing a slum from generating jobs and reducing violent crime, leaving people in poverty and fear, then perhaps you would agree to sell it at fair market value to a nursery? (Though I think we've tortured your poor plant enough here!)

The point is not that we can all come up with a hypothetical or an isolated actual example of eminent domain being used in a problematic way, and I agree that's a very bad thing, but that's not the norm. I bet most of the Justices thought New London was engaging in bad policy, but not unconstitutional actions.

The same goes for the other 3-4 takings cases that conservative litigation organizations have taken to the Court in the past few years like the IOLTA case and the wetlands case before that.

Drew: yes, I read Kelo. And I also remember what it means to analogize the case. Kelo applies not only to cases with facts identical to Kelo (involving crime and destitution), but to ALL cases where the government forces the sale of private property into private hands (which may involve any other claim of public purpose).

Kelo’s endless talk about great benefits of the forced sale implies that a prosaic cost-benefit analysis is perfectly appropriate. So, if the government takes some “major” property (like the entire neighborhood full of private houses), then, it better shows some “big” benefit. Presumably, if it only takes my houseplant, the public benefit should be much smaller.

Notice also that to demonstrate “public benefit,” all you need to do is fantasize. New London claimed a somewhat speculative increase in tax revenues and a completely speculative stuff about reduced crime and economic revitalization. The city had no way of knowing whether the taking would improve the neighborhood, how much it will improve, whether it will merely reshuffle the existing problems a few blocks to the east, and so forth. And yet, this storytelling was enough to remove people from their homes.

So, going back to my houseplant: the “public purpose” of forcing its sale to a posh hotel would be to increase the city’s revenue. “Public purpose” of moving my grandma’s antique china to a local gallery would be to teach the new generation about American history and art. By taking my Stradivarius, the city can increase the attractiveness of the local symphony orchestra to minority youth. My Mark Twain’s letters will, of course, be an important teaching tool at a local university. All these “public purpose” claims are about as persuasive as New London’s chatter about economic revitalization and crime.

Here in Missouri we've had private eminent domain for some time. Two relatively recent developments in the Saint Louis area -- for Walmart and Target -- were made by wiping out historically African-American enclaves in otherwise white neighborhoods. Back in the 1960s, St. Louis did the same thing to African-American neighborhoods, wiping them out by eminent domain, not for retail developments but for 'open space': they didn't even make public parks out of these new open areas, they just left it vacant and ugly.

I am a proponent of virtue ethics; decent people shouldn't just do this sort of thing. From the standpoint of social justice theory - which presumes a virtue ethics framework, this sort of development should raise many red warning flags.

I see Kelo as an extention of utilitarian thinking, which can lead down very dangerous roads if we aren't careful.

The pro-Kelo commenters are missing what is specifically illiberal about Kelo, and Kate is doing a fantastic job of pointing it out by example.

The security of property rights is a necessary condition for long-term cooperation among people pursuing their various ends over the long term. Eroding this security erodes the conditions for cooperation, and sets up conditions of conflict.

The security and stability of the property regime is an exceedingly important public good. That is why the conditions under which governments can coercively appropriate property must be very limited.
Human beings become neither wise nor good upon elevation to the city council. The temptation to corruption through an overly lax conception of takings for the public good all but guarantees that the economically powerful will be able to apply their means to influence political decisions over what is and is not to the benefit of the general public. In which case, eminent domain simply becomes a vehicle through which the economically powerful are able to transfer wealth from the less powerful. Strong property rights are a bulwark for the weak against predation by the strong.

A series of unprincipled, ad hoc political decisions about what is and isn't blighted, what is an isn't in the public interest, etc. weakens the integrity of the cooperation-enabling assurances of the property system, thereby deeply injuring the general welfare, and at the expense of the least powerful. That's illiberal if anything is.

Eminent domain is sometimes genuinely necessary. But predatory, opportunistic political behavior is not just possible, but probable. That's why the bar for takings has to be very very high, and the compensation too.

Here in Washington, DC, former mayor Marion Barry, despite his proven criminality and corruption, was recently re-elected to City Council. We should want our rights to our property to hang on the decisions of Marion Barry WHY?

Mark, I would even argue that the Kelo decision is not utilitarian. In college philosophy courses, students go through the thought experiment of the Human Lottery. Killing one person will save 4 people's lives. That seems utilitarian. So does forcing 20 families out of homes that don't generate as much tax revenue as a mall. However, the utils are actually negative because no one is very happy living in a society where one's organs can be harvested at any time. The insecurity leads to people making bad decisions and not investing in their own lives. Well, if eminent domain for private purposes (as Kate points out, with speculative positive utils to begin with) becomes widespread, then people may make sub-optimal decisions about investing in residential real estate or making asset-specific investments in their own homes.

The problem with these houseplant/stradivarious arguments is that they seem to be straw man arguments -- that is, a Federal court, applying Kelo, would likely find the purposes inadequate and would reject these takings.

And that is right, because personal property rights are tremendously important, and desire huge weight even against the broader public good. Maybe legislation should be enacted to make that personal property right absolute, but that's not what the Constitution says.

As a tangent -- My property law professor was an East European emigrant who had seen first-hand the problems with failing to give personal property rights (any) respect and he used the classroom pulpit to argue the Constituion would require, for example, the state to compensate sports cars owners for the loss in value of their cars when speed limits were reduced.

And I recognize that not all great society programs worked so well and not every taking for community development is going to match every promise of its supporters, I don't think perfection is the standard that would apply here. After four decades of economic and community development, we have a better idea of what works and what is an abysmal failure and that discussion is certainly part of the Kelo anaylsis.