Most of the time it’s best to ignore Jeff Jacoby’s Boston Globe columns. But today’s column is worth discussing, in part because he’s mostly right – a rarity! – and in part because he’s wrong on an important sub-point.
He’s writing about the fallout from Kelo v. New London, the unfortunate 2005 U.S. Supreme Court decision that upheld the use of eminent domain to seize private property that was in good condition, not to build a post office or some other traditional “public use,” but simply because local authorities wanted to transfer the land to a private developer who said it wanted to build something bigger.
Jacoby’s column today points out that things worked out really badly in New London. Nine years later, the property is in much worse shape than it was before the previous owners were booted out. Today, apparently, the site is
“a vast, empty field — 90 acres — that was entirely uninhabited and looked as though it had always been that way.” There is no hotel, no health club, no condos. The neighborhood that for generations had been home to working-class families like the Derys and Cristofaros is now a “deserted incline,” where the only signs of life are “waist-high dead weeds.” The homeowners were dispossessed for nothing. Fort Trumbull was never redeveloped. Pfizer itself [at whose behest the property was taken] bailed out of New London in 2009.
What happened to Ms. Kelo and the other landowners is legitimately a travesty, as the city of New London now admits (the city’s current mayor apologized to the Kelo plaintiffs, even erecting a plaque remembering one of them who died during the litigation).
In my view, Jacoby is right in thinking that Kelo was a mistake – and that would be true even if Pfizer had gone ahead with the proposed development. Conservatives like Jacoby and others like to claim the moral high ground on Kelo – after all, they correctly point out, it was the Supreme Court’s more conservative Justices (Rehnquist, O’Connor, Scalia, and Thomas) who dissented from the Court’s ruling. They don’t like to mention that liberals around the country were equally outraged by the decision. The day the case was decided, I wrote a post called “When good judges go bad” lamenting that, of the four “liberal” Justices in the majority, “not one of them could see how wrong this decision is.” In 2009, I posted that “More than three years later, Kelo still sucks.” So don’t get all high and mighty, conservatives. You guys are the ones who are usually fine with corporate special interests job creators getting pretty much whatever they ask for.
Anyway, where Jacoby is wrong is in thinking that a Kelo-type “economic development” taking is legal in Massachusetts (he says that Kelo led “a number of states — Massachusetts, unfortunately, not among them — to pass new laws protecting property owners from abusive eminent-domain takings”). As I read our state Constitution, it’s not, and it never has been. In 1910, our Supreme Judicial Court was presented with a similar question, and wrote:
An affirmative answer to this question would make it possible for the city to take the home of a resident near the line of the thoroughfare, or the shop of a humble tradesman, and compel him to give up his property and go elsewhere, for no other reason than that, in the opinion of the authorities of the city, some other use of the land would be more profitable, and therefore would better promote the prosperity of the citizens generally. We know of no case in which the exercise of the right of eminent domain … has been justified on such grounds.
Later, in 1955, the SJC considered certain land that was neither “blighted” nor presently “a slum,” though there was “an apprehension lest it become one.” This “apprehension” was not enough:
public money cannot be used for the primary purpose of acquiring either by eminent domain or by purchase private lands to be turned over or sold to private persons for private use…. It seems plain that the primary design of the bill is to provide for the acquisition of the area by the use, at the outset at least, of substantial sums of public money and later of comparatively small sums, to formulate a plan for development, including the devoting of some portions of the area to truly public uses, and the return of the remainder to private ownership to be rented or sold for private profit, with the expectation that adjacent areas and the city as a whole will benefit through the increase of taxable property and of values. But this kind of indirect public benefit has never been deemed to render a project one for a public purpose.
Kelo has not, to my knowledge, caused Massachusetts courts to reconsider the boundaries of the permissible use of eminent domain under the Massachusetts Constitution. Of course, municipalities have long used the rubric of “urban renewal” to declare land “blighted” and then use eminent domain to transfer the land to new owners. This is legal in Massachusetts, and it can be (and, arguably at least, has been) abused. But to my knowledge, at least in Massachusetts, authorities cannot do what was done in Kelo.
Disclaimer: nothing in this post should be taken as legal advice. Also, I am part of the legal team which is trying to overturn the Attorney General’s ruling that the proposed initiative petition relative to casino gambling cannot appear on the November 2014 ballot because it would, if enacted, result in an uncompensated taking of private property. The “taking” issue in the casino matter is quite different from the one considered in Kelo.
The decision’s awful. I’d guess you’re right about our constitution here, but it would be nice to have a more explicit statement than a precedent nearly 60 years old and another one from over a century ago.
Between liberals and conservatives on this is that liberals actually respect the balance between property rights and the public interest. Conservatives either value property rights over the public interest all the time (selling of public lands, drilling in national parks, not forcing companies to clean up their messes, etc.) as a matter of philosophy. And as a matter of practice they haven’t met a corporate subsidy or rent seeking business they didn’t like (military contractors, agribusiness, and big banks come immediately to mind). The broken clocks happened to be ‘right’ on Kelo, but by no means was our side ever in the wrong.
I’ve said it many times (including at BMG), and I’ll say it again: Kelo was correctly decided. The outrage belongs not with the Court, but at the foolish decision by New London local authorities to green-light this project. The reason discussions of Kelo puzzle me is that this case might be the best recent example of a common fallacy: blaming the Court for the negative consequences of what was a poor legislative (not judicial) decision.
David points out that conservatives don’t like to mention that “liberals around the country were equally outraged by the decision.” That’s quite true. But what people who were outraged by the decision apparently don’t like to acknowledge is that Kelo ultimately led to stronger protections against the type of takings involved in New London. Over forty states have enacted new constitutional or statutory restrictions in response to Kelo and they are free to enact more.
Perhaps the key sentence from the majority’s opinion was, near the end: “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” Yes, and this proved both legally correct as well as right as a predictive matter for the rights-protective legislation that was to come. If the Court had ruled the other way, it would have closed off legislative options not just for the type of takings involved in New London but quite possibly for a wider range of takings that actually work to benefit the community. Instead, by ruling as they did, the Court allowed democracy to run its course — and it did, as seen in the many legislative actions responding to Kelo.
What do you know — democracy actually works sometimes.
I know we disagreed on this last time around. What happened in Kelo – a genuine “economic development” taking without even the cover of “urban renewal” or some similar legislative justification, is actually quite rare, which is why it had never been squarely presented before. I maintain that it was, and remains, possible to cabin eminent domain by making such takings unconstitutional as not serving a “public use” – as, indeed, we appear to have done in Massachusetts.
In other words, I still think I’m right. 🙂
Why not have legislatures, rather than courts, “cabin eminent domain” by passing statutes or state constitutional amendments limiting governmental power in those cases? In fact, that’s precisely what happened after Kelo, which is why the Court’s decision was ultimately correct.
We have seen far too often what happens when courts attempt to micro-manage particular policy areas by limiting governmental power (see, e.g., campaign finance, gun rights, Medicaid expansion). Things become a big mess pretty quickly.
It’s much better in this case that the Court allowed the people closest to the action to tailor limits on governmental takings rather than taking that role on itself, given the Court’s history of completely misunderstanding how public policy actually works.
Legislatures, in general, are more prone to capture by moneyed interests. The whole point of a constitutional protection like the Takings Clause is to be a safeguard against legislative overreach. If we wanted to trust legislative judgment as to what constitutes “public use,” there was no need to include the words “public use” in the 5th Amendment at all.
If legislatures are more prone to capture by moneyed interests, then what explains why the judiciary struck down campaign finance regulations that Congress passed? Or a Medicaid expansion benefiting the poor, enacted by Congress? Or state and local gun regulations passed over the objection of the nation’s most powerful special interest group (the NRA)?
One doesn’t need to go back to the courts striking down labor laws passed by legislatures during the Progressive Era to find many examples contradicting the common myth (particularly among progressives, for some reason) that “legislatures, in general, are more prone to capture by moneyed interests.” It simply isn’t true.
I agree with that for the most part. But the theory of judicial review for 200 years has been that courts must enforce the Constitution against legislative encroachment on individual rights. There can be dispute over where courts should draw the “public use” line, but any line that allows the Kelo outcome or the wholesale eviction of an entire Washington, DC neighborhood is wrong in my view.
I should note that we agree about the wrongness of the New London project, as well as the takings that decimated neighborhoods that you mention here and in your comment below.
Where we disagree is that I see them as wrong as a policy matter, but not a constitutional one.
I just don’t see the point of having any “public use” limit in the Takings Clause at all if projects like the New London project can pass muster.
Yes, the judiciary branch is not immune to outside influence, but how does a few examples disprove the idea that Congress is *more* prone to such influence. After all, Congress is infested with lobbyists. There are no lobbyists in the courts (not publicly anyway).
Look at the long-term history of the judiciary. They have typically been used as a way for moneyed interests (especially business groups and rich interests who have the power/money to hire lawyers) to stymie government power.
Plus, the other issue is that federal judges are more free to vote their preferences than legislators are. Even legislators raking in money from corporate interests have to worry at least a bit about the voters (to be re-elected). Judges do not, so if they have a bias towards business interests, there is no pressure to stop them voting for those interests.
Yes, there is no doubt a reasonable argument that judges have been influenced as well, but you in no way have made a convincing case that it is at the same level as the influence on legislators.
Furthermore, in more recent times post Citizens United, it seems like the amount of moneyed influence on legislatures has only increased.
Confounded Iphone – was meant to be uprate.
The whole purpose of the judiciary is to represent the propertied interests. They were captured, to use your nomenclature, in their cradle. That is why they are appointed, not elected: to keep them away from the people, and close to the elite. And their record eminently — dare I use the word — supports that: throughout our history the courts have slowed down change and protected the economic status quo.
I suppose you subscribe to Beard’s interpretation of the Constitution too? They are appointed to protect the prorogatives of the Constitution even if it means making an unpopular ruling. I could cite any number of examples especially from the Warren era.
The Warren Court was the exception, and certainly not the rule, when it comes to courts being progressive. Even then, it’s not clear that the courts were much more liberal than Congress and the executive branch at the time. There’s Brown v. Board of Education, of course (which, incidentally, had very little actual impact on segregation until Congress acted years later), but how about cases like Dennis v. U.S. and Hoyt v. Florida? Not exactly liberal decisions, and that was by far the most liberal court in history.
Anyway, the point is that for the vast majority of American history, the courts have not been on the side of progressives.
of what you’re saying. Sure, the judiciary gave us Dred Scott and blocked progressive legislation for decades. But the judiciary has always been the sole countermajoritarian branch in our government. The entire premise is that majorities sometimes trample on individual rights and the Constitution sets limits on their ability to do so.
It’s not like there’s no history of Congress and state legislatures being in the pockets of big money. I could just as easily point to the 1870s through the early 1900s, a time when both parties were thoroughly in support of a tiny economic elite at the federal level, or to sweetheart deals for railroads and big oil throughout our history, not to mention the current mess.
for the Court to develop its own jurisprudence on what a core constitutional concept like “public use” means, rather than simply deferring to local authorities on what is and isn’t public use. The latter approach seems to me an abdication of the judicial role. As for this:
Why not have legislatures, rather than courts, “cabin eminent domain” by passing statutes or state constitutional amendments limiting governmental power in those cases?
I have no problem at all with having state legislatures go beyond what is constitutionally required in an area like this (and many others). I think it’s a fine idea. But you seem to be suggesting that the rightness or wrongness of the Court’s decision depends on what happened afterward. Hard to see how that standard would lead to the development of a coherent set of constitutional doctrines.
I am not suggesting that the correctness of a decision has to do with what happened afterward. Rather, I’m suggesting that, absent cases in which legislatures violate clear constitutional prohibitions (like a local authority enacting an ex post facto law), courts ought to defer to legislative authorities on the meaning of vague terms like “public use” or the meaning of “to keep and bear arms.”
Otherwise, we get a situation where courts close off democratic deliberation based upon little more than a majority of the justices’ personal ideologies. Without a baseline rule of deference to legislative authorities, there is little to distinguish a case like Citizens United from Kelo. After all, both involved allegations that government action violated a core constitutional principle, no?
Such a baseline of deference (a principle that courts often invoke but rarely follow) is not an abdication of the judicial role, especially since the courts would still have plenty to do handling non-constitutional cases. It is instead an acknowledgement that judges are neither public policy experts nor good predictors about the consequences of any broad constitutional rules they devise.
…or “unreasonable searches and seizures,” or “due process,” or …
I mean, at some point the whole bill of rights exercise becomes pointless, on this theory, doesn’t it? You and Bob seem to be very much aligned on the virtues of courts pretty much deferring to legislatures in pretty much every case beyond the most technical (e.g., ex post facto). Bob and I have been discussing this for years … we’ve agreed to disagree. 🙂
But how do you distinguish between a “good” rights decision (say, one striking down a ban on same-sex marriage) and one striking down a “bad” rights decision, like Citizens United or McDonald v. Chicago? Other than based upon the policy merits of the outcome, that is?
For me Citizens United is a perfect example. The merits of the outcome are horrible, but I completely understand, and to a large extent agree with, the Court’s constitutional reasoning. Therefore, I have come around to the opinion that we need to amend the Constitution to fix that. In the other direction there is Roe v. Wade, which led to a result I support because I am prochoice, but honestly I have never been completely convinced of the constitutional soundness of that decision.
Heller and McDonald, for example, are just textually wrong. They read the first half of the amendment out of the Constitution and ignored plenty of precedent.
The marriage cases simply apply the word “equal” in a framework that’s been familiar since Carolene Products in 1938: unequal treatment of a discrete minority that has been the object of animus from the political majority. The Court evaluates what constitutes a “compelling government interest.”
that if your take on what constitutes a “reasonable search” or “due process” is that it’s whatever the local authorities say it is, then we have a fundamental disagreement.
But I’m just looking for a good defense of the alternative: that the interpretation of the Constitution should depend solely on whatever a majority of nine justices opines that it means.
The argument that “what people who were outraged by the decision apparently don’t like to acknowledge is that Kelo ultimately led to stronger protections against the type of takings involved in New London” makes little sense to me. Jim Crow and lynchings prompted Civil Rights legislation. Should we be grateful to those who provided the impetus for that remedial legislation?
It does not make a decision correct that it was so bad forty states felt the need to legislate against it. If that’s the case, Lilly Ledbetter was a good decision. And if legislative flexibility to engage in “beneficial” takings of this sort is desirable, why is it also a positive thing that so many jurisdictions chose to close that avenue?
I do not believe private homeowners should be forced out of their homes because arrogant technocrats with close ties to corporate entities believe their neighborhoods should be put to some other use. If Apple expressed interest in relocating its HQ to Boston, I would not want our legislature to give them half of Roxbury because it would be more “economically productive.” I believe the Constitution should protect against that, and that Kelo was a bad judicial decision as well as a bad legislative decision.
Re-reading the opinion, I also was reminded of the botching of Southwest DC (held up as a precedent by the Kelo court) and the West End of Boston. They wanted to do the same thing for the North End. Good thing they didn’t. How many tony urban neighborhoods in this country fell out of fashion at some point? One person’s slum is another person’s charming historic district.
The point is that judicial deference to legislatures allows more possibility of correction than broad constitutional rules constraining policymaking.
If the courts make a “bad” decision by deferring to legislative authorities in Kelo, then legislatures can enact stronger restraints on government. If they make a “bad” decision in a case like Citizens United, then we’re screwed. There is no possibility of correction, unless mistaken justices are replaced by justices more likely to defer to legislatures.
(As for Ledbetter, that involved statutory and not constitutional interpretation, which is a separate discussion since those decisions are correctable through the legislative process. My argument for deference has to do with the judiciary placing constitutional limits on legislating).
it sounds good. I’d not like to apply a deference theory to Brown v. Board, which not only had legislative classifications involved but an adverse Supreme Court precedent directly on point. Or to countless other cases where the courts upheld an important constitutional right by not showing deference to the legislature. Sure, legislatures were “free” to fix those wrongs, but they weren’t about to do it any time soon.
Citizens United needed no deference to come out differently, just a real-world understanding (possessed by four justices) that there are compelling interests justifying the regulations.
You’re absolutely correct that Ledbetter was a statuory case, but it seems to me there should be less deference in constitutional cases lest we allow the political branches to define the contours of constitutional rights with no judicial oversight, which defeats the whole purpose of having such limitations on legislatures.
we have too many examples from history — often ignored — of perfectly good neighborhoods being destroyed because wealthier people didn’t like or value the people living in them.
You can find examples of these neighborhoods in so many cities across America from decades and decades ago, and in many cases the cities are *still* trying to recover from the devastation.
Eminent domain should only be used in rare circumstances — and if we allow it to be used for private interests to wipe out perfectly good neighborhoods to drop some kind of a complex there, it’s going to be a tragedy in all cases and in many cases like New London, a travesty as well, given that all too many of these major developments flame out or and almost never meet the promises that were given about them.
I tend to view Kelo as a triumph of big money over everybody else.
I fear that the traditional left/right and Democratic/Republican divisions do not apply (though I wish they did). When it comes down to a conflict between something that the 1% really wants versus something that the 99% opposes, the 1% viewpoint prevails, even among “liberals”, more often than I like.
and a few supreme court justices agree with Kelo?
Not all that many.
It was almost universally reviled.
in the best interest of their citizens by passing by-laws.
Scituate
Monson
Further concerns have been raised pertaining to eminent domain with the special interest – “emergency legislation” legalizing slots/casinos.
Such an law would prevent uses such as railroads, electrical transmission lines, or gas pipelines – private takings which people have been generally comfortable with over the years.
I do like the concept of a community deciding where to set the boundary lines for themselves though. If Monson wants to reject the idea of a gas pipeline running through their community, maybe they should be allowed to – but also live with the consequences of blocking such a project (i.e. no gas service in town).
What do you all think of the plan by Richmond, CA (and potentially a number of other cities) to seize “underwater” mortgages by eminent domain? (See http://www.nytimes.com/2014/01/12/business/in-richmond-california-a-long-shot-against-blight.html for a good summary.) This has set up situation that is almost the inverse of Kelo: essentially a conflict between a progressive mayor (she’s Green Party) who is pushing for the use of eminent domain, and a bunch of big banks and hedge funds fighting her (because they own mortgage-backed securities that hold the underwater mortgages that would be seized). While I am generally sympathetic to the mayor’s goals here, this plan would again seem to result in a straight transfer from one private interest (i.e., the bank) to another (i.e., the homeowner), with a cut to a third private party (i.e., the investment fund that has partnered with the city to finance the seizures). As such, I am very skeptical that this is a legal and/or appropriate use of eminent domain (though I may be biased — see disclaimer below). Thoughts?
Full disclosure: I did some work on one of the lawsuits mentioned in the NYT article, on behalf of one of the aforementioned banks. I have since changed jobs and am no longer involved.