Seriously. I’m only composing this because I can’t get past the main menu of Ju-on. Lame and pathetic, I know, but just the stuff that runs in the background of the main menu creeps me out no end.
But of course that’s not what I want to write about. Anything but that. What started this was about Wednesday, when they came to take my citrus trees. I came home from work, and where my tangerine, grapefruit and orange trees used to be was just three sandy places in the yard. They even took the stumps. The grapefruit tree was in full bloom at the time, and there’s only two or three better smelling flowers on the planet; two of those were open blossoms on the other two trees. When we were leaving to get Abby three years ago, those trees were in bloom. The smell of citrus blossoms and the anticipation of soon having my second child placed in my arms will be forever linked. It really must be experienced to be appreciated.
No crime, though. They took them with my consent, but they could have taken them without it. "They", of course, is the Florida State Department of Agriculture. Why they took them is just another one of those unfinished details from the hurricanes. See, some rocket scientist that lives down near Orange Avenue and 528 took a citrus tree of some sort from a quarantined area in Florida, and it had citrus canker. Hurricane Charley tore across that tree and spread canker for a couple of miles downwind. Any tree within a 1900-foot radius of an infected tree has to go, by law, and there was an infected tree discovered less than a quarter-mile from my house.
Now, some people have put up a fight, saying that the state has no right to enter private property and remove your trees. This is what’s got me thinking about what powers we’ve entrusted to government. As a conservative I’m more or less predisposed to resist the encroachment of government powers into my private life (go ahead, laugh), but I’ve been noticing that we authorize such encroachments routinely. We’ve consciously (or unconsciously) recognized that there are functions that the government is best suited to perform, and circumstances in which the government can be allowed to do things that are decidedly outside of its normal scope of activity.
So, should there be more restrictions on what government can do, or less? Should we have no government involvement beyond what’s chartered by the Constitution, or should the government be permitted even more freedom of action than it is now? So far, I’ve only gotten as far as the question.
How about a general principle that we need these general principles only when politics and markets fail to resolve disputes to a degree that the resolution failure becomes a larger problem than the original disputes?
I hope that was clear. 🙂
Bummer about your trees. Our landlord has an orange tree flourishing conveniently next to the trash cans – I expect to get awakened one night by all the fruit simultaneously falling. Anyway, it smells heavenly. Taking the trash out is man’s work in our household, and the other night I brought in a single orange blossom for my fiancée. The next morning the scent had filled the kitchen.
Now I’m eager to smell grapefruit blossoms, given that I like grapefruit juice better than orange juice.
Hmm. For starters, if by ‘the Constitution’ you mean the US Constitution, it limits only the federal government, not the states, so it wouldn’t help with the Florida Dept. of Agriculture. I skimmed the Florida Constitution, and while it does mention certain things as being things the government ought to take an interest in (education, the preservation of Florida’s scenic places, etc.), I couldn’t find any passages that limit what government is supposed to be involved in. So I’m not sure your state constitution offers much guidance. (Though it does have a whole big section on the confinement of pregnant pigs.)
Anyways, I normally think there are several categories of things that are no-brainers for government involvement. (I’ll stick to restrictions on individual conduct, not tax-funded programs.) One are areas in which it’s important to set up the rules of some activity, and enforce them. The SEC is a good example: our economy depends in part on the fact that we do have rules about e.g. stock trading and accounting, which (when done right) enable everyone to benefit from a transparent trading system. Companies get liquidity, stockholders get returns on their investment, it’s just generally good, but it wouldn’t work absent rules. (See Russia, 1990s.) Providing those rules, when the activity is society-wide (and not, say, the rules of Major League Baseball) is an obvious governmental task.
Then there are public goods: things everyone benefits from if anyone does, which for that reason it might occur to people not to pay for themselves, and which it therefore makes sense to tax people for, so long as the good in question is one that people do in fact want. Example: the national defense. It would not be a good idea to collect money for the national defense on a voluntary basis. It is not possible to defend only those homes inhabited by people who paid into the National Defense Fund: if all the people who decided not to chip in lived together, maybe we could write off a state or two, but if they are sprinkled throughout, we will have to defend their lands along with our own, whether they paid up or not. That being so, if we had a voluntary scheme. people would have an incentive not to pay up: if their homes will be defended regardless, why not keep the money for themselves? Assuming that we all do want the nation defended, it makes sense to tax people for this purpose, and provide for the national defense. — This is a taxation example, but there are others involving restrictions, but with the same structure. E.g., enforced fishing limits when the fishery everyone depends on is on the verge of collapse.
Then there are cases in which allowing some sort of individual action would expose others to significant harm against which they cannot protect privately, where, again, it makes sense for the government to act. I assume this is what led to the loss of your citrus trees (I’m sorry about them; I would HATE that). Especially in a state like Florida, keeping a fruit tree with a communicable disease or fungus on your property is not just a private act between you and your tree; it places all sorts of other trees, and in Florida a significant chunk of the economy, at risk. This, I think, is a sort of economic analog of public health.
Then there are restrictions whose point is to enhance the amount of freedom we actually have. Example: the law against driving on the left. It does, of course, take away my freedom to drive on any old side of the street I want, but it allows me to do many things I wouldn’t be able to do if everyone got to choose which side of the street to drive on. I can drive faster, spend less time sitting behind car accidents, etc., etc., and it’s clearly a net plus as far as my freedom of action is concerned. Likewise, bans on selling tainted food: I, for one, am very glad that I do not need to test all the food I buy. I have better things to do with my time, and I am more than happy to let the government deal with this one.
There are more, but this comment is getting too long. — I should say that as far as the federal gov’t is concerned, I favor obeying the constitution, and thus confining the federal government to federal issues. I think there’s a lot to be said for doing environmental policy at the federal level, but except when it affects interstate commerce, I don’t see Constitutional grounds for doing it that way. More’s the pity.
“I skimmed the Florida Constitution, and […]”
Slart, don’t you hate conversing with people who do this kind of thing to you? I just wanna reread a few pages of some genre novel and go to bed.
“Should we have no government involvement beyond what’s chartered by the Constitution”
No (by which I mean, more than the Constitution)
“or should the government be permitted even more freedom of action than it is now? ”
No.
What do I win?
Seriously, the scariest elements of government power are seizure and appropriation, especially imminent domain garbage. It’s one thing to say I can’t smoke in a bar or whatever, it’s another to come and take my things or kill my trees or bulldoze my house. I have a secret suspicion that someone evil broke into the Continental Congress safe and appended ‘without just compensation’ to the fifth amendment. It would have been fine without it. I pray nightly for a just resolution of Kelo vs City of New London. I cried when I read this. I can’t imagine what I would do if a government official came to my home and told me it was going to be appropriated. I’m not a violent person. I would buy a gun.
Whee. Eminent domain, of course. Imminence is somewhat related.
We had something similar with animals a few years back. All pet rabbits and goats and such had to be killed. Gruesome, even if you understand the logic behind it.
I think if things have an important part that should be done ‘for the greater good’ the government has to have more power. Sometimes that includes ‘to prevent bad for groups of people’.
There are grey area’s though. Trains have been privatized here, which makes sense in a way (competition is good). But making sure everybody has acces to public transport is not a motivation for transport companies. So transporting handicapped people has to be enforced by law (or is not enforced in fact). Transport to tiny places costs money, no profit, so that is not done either. After privatization making profit became more important to the transport companies than providing transport, so they suddenly started to venture into other business area’s too. Sort of like the energy companies in California IIRC.
In the end we are faced with less trains and buses, higher prizes, less service….
Sorry to hear about your trees. I would love to have fruit trees in my garden, but it’s really too small. (Sporadically, I contemplate dwarf apple trees. Then I contemplate the kids in my area, some of whom are big enough to carry off a dwarf apple tree, and some of whom would, just for the hell of it, and I decide to make do with herbs and flowers and buy my fruit.)
As for “government interference” – I rather like a comment someone made years ago (cannot remember who) “If we had a perfect system of charities, we wouldn’t need a state: if we had a perfect state, we wouldn’t need charities”. I kind of like Anarres or the Valley, in Ursula K. LeGuin’s novels, where people live happily without government, but with the ingrained and certain knowledge of the principle of mutual aid. But I note that these things work assuming everyone will be willing to come to each other’s aid at need – that people are willing to live in a society that lives by the early Christian principles that Christians have long since discarded (Marx picked them up again and outlined them as communism, but many Christians prefer not to think about that) – and that requires a fairly small society. Either on Anarres or in the Valley, LeGuin had to suppose a culture where there simply weren’t very many people, and which was shielded from outside influence.
Practically speaking, I like government doing its job; collecting not only my rubbish, but everyone else’s rubbish: running a health system that I can benefit from any time I need it, and benefit from all the time by having other people able to access it when they need it; funding schools and paying teachers: building and maintaining roads and railways; and I pay up for them to do that job, and collectively, can fire them when I’m not happy with the job they’re doing.
Hilzoy outlines the principles rather well. Government should do collectively what everyone benefits from. Sadly, getting rid of cankered fruit trees is certainly one of those things.
Likewise, bans on selling tainted food: I, for one, am very glad that I do not need to test all the food I buy.
I am reminded of Flann O’Brian (who wrote under the pen name of Myles na Gopaleenamd is one of the funniest writers I have ever read). In his later years, he would bring an apparatus on his bar hopping in order to test the proof of his whiskey. Sometimes, it is important to know…
Not too many years ago there was a severe hoof-and-mouth outbreak in GB (not to be confused with foot-in-mouth outbreaks so common on the internet.)
The government eventually took measures of the type you describe here, destroying herds on even a chance of infection, but not until after massive damage had occurred. It’s a very old story. Don’t blame the government on this one; blame the “rocket scientist” upwind of you.
In the constitution, this falls under even the narrowest interpretation of promoting the general welfare. Strictly utilitarian i know, but still a few chopped down trees, infected or not, is a small price to pay in comparison to an epidemic. Note that if the government had not taken some sort of drastic action, you can be sure your trees would eventually have been infected, and you would then have to replace them in an already-infested environment.
Take your spoonful of nasty medicine. At the same time, sorry to hear that about your trees; it’s a crying shame.
A few more drastic examples of this government exercise of police powers for public welfare.
During the fires after the 1908 San Francisco earthquake, the fire department knocked down houses to provide a fire break and prevent further spreading of the fire. Perfectly legal.
A few years ago, a large landslide developed above Pacific Coast Highway near Malibu (intersection with Los Flores Canyon — across the street from Dukes)). The entire hillside became unstable, and perched at the top were three modest houses with magnificient ocean views. To stabilize the hill and protect the highway, the entire slope was cut back, resulting in destruction of all three homes. The ground they were resting on literally ceased to exist, although the next guy then got a much improved view….
After the 1994 Northridge earthquake, a 15 story office building in West Los Angeles (Olympic at Barrington) had its structural members literally severed. Althuogh the office building did not topple (which was amazing), it was in immiment danger of collapse. The government barred all entry, and demolished it within 72 hours of so of the quake. The building primarily had medical offices — no one was allowed to remove anything.
Sorry about your trees. How long do you have to wait before planting new ones?
Legally, states have something we did not give the federal government: the police power. Basically, a state is empowered to do anything it wants other than that which is precluded by your state bill of rights — in Florida, the Declaration of Rights — and the 14th amendment of the US Constitution. (The republican form of government clause is theoretically a limit on state action, but no one knows what it means).
Not that it would help with your trees, but your Florida right of privacy is kind of interesting looking. I would guess that since it was only put in the constitution in 1998 the exact limits of government intrusion haven’t all been found as yet.
A couple of short easy to read cases on this subject are online. I remember Surocco v. Geary, 3 Cal. 69 (1853), from law school — it deals eloquently with the just compensation question when a building is destroyed to create a firebrake — and Miller v. Schoene, 276 U.S. 272 (1928), resolves the due process question. (Concerning the latter, which is about being forced to cut down trees to prevent the spread of disease, I would expect that the decision below, in the Virginia Court of Appeals, resolves the just compensation question).
Someday I’ll get good enough at that link thing to risk doing it, without fear of plunging the site into some kind of darkness. Until then, google will get you to the cases quite efficiently.
On the broader question of more restrictions vs. less:
the big problem is that too many people want more restrictions — imposed on someone else.
Nice post, as usual.
The law professor Cass Sunstein has a book coming out describing the “Constitution in Exile” movement gaining steam in the Republican Party.
They have all the answers.
It’s cool. Trees in my yard could not be removed even if they were infecting trees in everybody else’s yard, but I could also cut down trees on what used to be National Park land at will.
Plus, as a bonus, I get to kick deadbeat old, poor folks out of nursing homes and crap in the local river without interference from evil Washington.
It’s all upside.
Spreading Citrus Disease
This is one aspect of the hurricane devastation that I’d missed until now:…
During the fires after the 1908 San Francisco earthquake
The quake was in 1906. The only way I recall this properly is that Monday is the 99th anniversary of the quake. 5:18 am PST.
Also, it was the Army coming out of the Presidio that created the firebreak…with dynamite, lots of it.
One part of the old Barbary Coast was spared though. The area around Hotaling Street in the Jackson Square historic district near my home was saved by Mr. Hotaling. He ran the whiskey distributorship in town and paid (in whiskey, of course) the fire department to watch over the area (which included his warehouse).
sidereal –
Do you really think a national (or for that matter a state, or city) government could function without the power of eminent domain? That every road, every railroad, every powerline, every sewer, every water pipe, had to be twisted and wrapped around the holdings of whatever private owners happened to stand in the way that would not consent to sell, and any property owner that happened to be standing athwart a particularly critical stretch could stick up the government for whatever it asked for.
Of course not, which is where we arrive at the part that the libertarians just don’t get. The purpose of eminent domain is to allow the free and unhindered development of the free land market.
Seems counterintuitive, but really, it makes sense. Don’t see how? Okay, imagine if, in the very beginnings of this country, the founders intended to make the 5th amendment read just as you suggest, making all individual land rights absolute and permanent, with no public interest great enough to justify expropriation. If such property rights as you describe were to be granted, the governments would have been far more deliberate and controlling about what land they released to the private market. And make no mistake – the vast majority of this country was released from government ownership to the private market. The “pioneers” were heading toward land grants, not the great unknown.
Under those circumstances, if the government ever wanted to create a system of interstate post roads (which they did), dig interstate canals (which they did), or any other interstate project, they would have had to reserve the land at the time of release, because they could never get it back again, ever, once it was released to private owners. It is likely that given this restriction, a much less free form of collective property would have been the only realistic answer to western expansion, unless national services were to be abandoned altogether in favor of fifteen hundred two-mile private turnpikes between New York and California. Now, as a libertarian, you must loathe the sound of the former. You may like the sound of the latter, but that would be an extreme position indeed, and one that would likely have doomed the US to be an irrelevant agrarian backwater.
Instead, the government decided to let the markets self-organize, and reserved the right to act independently at a later date if deemed necessary. The “frontier” was thus born in great gulps of free-market acquisition, rather than carefully controlled doling out of marginal parcels to ensure the government retained the right and ability to perform national functions.
Seriously, eminent domain is not “garbage,” and it is not the same as the English “droits of the crown” powers that libertarians so often conflate it with. Eminent domain, in the American context, is in fact one of the reasons our economy is bedrocked on the private rather than public sector. Frankly, you ought to thank your lucky stars for “without just compensation” every single day.
I hope I made it clear that I agree entirely. If not, this post needs either updating or a followup. There’s lots of things related to government activity in response to the hurricanes (both appropriate and wildly inappropriate) that I’d intended to cover. Also meant to discuss how the until-now largely defoliated trees in the neighborhoods are, for the first time, filling out nicely. Oh, and the tiny owl that I saw while walking the dog last night. P’raps a follup, then.
Hilzoy: noted. I plead unclear thinking due to self-imposed sleep deprivation, or whatever will serve. I guess this was a confused melange of discussing governmental powers in general without regard to where that seat of government lies. Anyway, noted, and as always, thanks for the gentle correction.
And I hope that my gratitude doesn’t sound too much like something one might hear in a laxative commercial.
Of course, st’s learned and useful exegesis on the history and purpose of eminent domain power has little to do with how it is actually used in most cases today, which is that perfectly good homes in perfectly good neighborhoods are marked “condemned,” then appropriated and bulldozed so that donors/cronies/friends of the city and state government can build shopping malls, baseball stadia, automobile dealerships, and the like. Because, hey, if the city can get more tax money out of whatever Alderman Jerkoff’s land developer buddy wants to build than out of whoever lives there now, it’s a public purpose!
I hope I made it clear that I agree entirely.
Oh yes, for sure. Sorry, I was expressing sympathy – or I was trying to do so. My clarity was at fault, not yours.
In regards to Phil’s comments, there was this. The case is over, but not only was this the abuse of eminent domain, there were also accusations that African-Americans were paid less than whites for similarly situated pieces of property. Here is the Clarion Ledger’s timeline of the Nissan plant. As a fillup, Nissan was also accused of predatory loan practices against minorities.
Slarti: Between sleep deprivation and loss of fruit trees, I’m amazed you managed to write at all, let alone well. — I have ten fruit trees in my back yard, all planted by me (I figure it’s the right amount to feed me and the birds and squirrels), and the very idea of having them all cut down makes me almost physically ill.
rilkefan: the first version of my reply to Slarti included the sentence: ‘Of course, I have no idea what the FL Constitution says…’, and then I thought: well, why not? Luckily I could just breeze by the lengthy sections on the precise form that appropriations bills should take, and I read fast. But the part on pregnant pigs was a surprise. And Slarti: your constitution says you have the right to be left alone, which I think is sort of endearing.
Actually, Hilzoy, the 14th Amendment to the U.S. Constitution* does place limits on what states can do (the law geek way of saying is that most of the bill of rights has been “incorporated” against the states by the 14th Amendment).
*”…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Phil: I will stake any reasonable sum of money that the VAST VAST majority of eminent domain cases currently pending around the country today are not being brought by redevelopment agencies but instead by public and quasi-public (utility) agencies empowered to bring water, sewer, electricity, gas, telephone, cable, and roads to your doorstep.
the reason that the redev. cases get press is that the public purpose / public use argument is so attenuated. Once a public agency asserts it can use eminent domain to cure “blight” and courts uphold that reason, there is very little that cannot be condemned.
odd, the way that the usual conservatives on blog suddenly urge courts to be activist and invalidate an exercise of one of the oldest powers of the state.
Francis, I’ll throw my money in with yours on that little wager – it’s a sucker bet anyway, you and I both know we’re right.
There’s a definite pattern, though – horrible anecdotal cases used as the sharp, piercing ends of largely unrelated agendas. See tort reform, the “death tax,” etc., etc. In this case, the agenda is the demonization of government, and its portrayal as incompetent to wield any significant power.
The answer to all the questions in the OP is “it depends”. You can’t just say we need “more” or “less” government because of a single event and then extrapolate that out, anymore than you can shout “more cowbell” at the recording engineer and expect to have a hit every time.
There are some things that government does too much of, some things it does too little of. This is why we discuss specifics in law, and why we rely on the accountable nature of democratic institutions to try and strike a reasonable balance between overreach and underreach at any given moment.
There’s a definite pattern, though – horrible anecdotal cases used as the sharp, piercing ends of largely unrelated agendas . . . In this case, the agenda is the demonization of government, and its portrayal as incompetent to wield any significant power.
I hope you aren’t accusing me of this, because I’ve said nothing that would support any such assumption. I merely want the government to stop using its powers to throw people out of perfectly good homes where they’ve resided for decades so someone can build a megemall. Period. I want the government to stick to its constitutionally enumerated powers for constitutionally permitted purposes, with reasonable leeway; and not to use those powers to enrich one (usually already rich) private party at the expense of another.
If I’m wrong about the majority of uses today, then I’m wrong, but that doesn’t make the cases I’m talking about insignificant, by a long shot. In fact, given the stakes in New London, nobody’s property is safe from being declared “blighted.” If there are no effective limits on the eminent domain power, then sidereal was pretty much correct.
What McDuff said.
Because of traditions of sovereign immunity, this is one of those cases where courts are going to be fairly reluctant to do anything other than order just compensation. I’m not saying you can’t do better in a state with a complete waiver, just that you very likely will not.
This is one of those instances where we’re forced to the Sebastian position on legislative vs. judicial resolution of controversies: you want to stop what you think is an overbroad use of ED, vote in a new city or county council.
(That this may be hard, or more likely is useless, has long been, to my mind, a practical refutation of the long held Republican position that local government is more responsive, and/or more legitimate, than the federal government. I’ve always thought that the lower the level of government is, the more susceptible it is to legal and illegal influence by special interests.)
Phil: Is the cure of blight a legitimate exercise of govt power? If so, then the only effective restraint on the exercise of ED power (besides the fact its expensive) is political.
oh, since i was trying to be comprehensive on the list of legitimate exercises of ED power, i need to add: and take storm water away from your door, and keep flood waters from coming through your door.
Francis: Who’s defining “blight?” In a recent case in Lakewood, OH — in which citizens of the so-called “blighted” area that was to be condemned got fed up enough that they started a ballot initiative to reverse the council’s definition of “blight” — it included such things as “not having at least a two-car garage.” Utterly ludicrous.
(That said, in my opinion, the Michigan case that resulted in the “blight” power gave government too much leeway on this stuff anyway. I think eminent domain should be the last tool used for such a purpose.)
Let’s put it this way: As the likelihood of the land being seized being given to a private developer for his private enrichment goes up, the likelihood of the land in question actually being “blighted” by any reasonable person’s standards approaches zero.
I have no problem with government buying up land to use for a freeway extension. I have a real problem with government throwing people out of their homes so Nissan can build a car plant. If Nissan wants the land, it can make offers itself, not use the government as its own private real estate agent.
st:
“Do you really think a national (or for that matter a state, or city) government could function without the power of eminent domain?”
Of course it could. It’s not like we’d all suddenly burst into flame. Many tasks would be considerably more difficult, but that’s true of any case where respect for rights trumps expediency.
“could stick up the government for whatever it asked for”
Ah, rhetorical excess. This seems to be a long euphemism for ‘offer to sell’. In which case, I agree. Starbucks just ‘stuck me up’ for 2 bucks for a brownie. Bastards.
“The purpose of eminent domain is to allow the free and unhindered development of the free land market.”
Good luck with that definition. The purpose of eminent domain is to allow government to appropriate private property as long as the ‘common good’ achieved passes some test. That test has been enervated over time and if New London goes poorly, the test will eliminated completely. Government will merely have to demonstrate a reasonable belief that the appropriation would lead to increased property taxes.
“If such property rights as you describe were to be granted, the governments would have been far more deliberate and controlling about what land they released to the private market.”
Probably. You’re arguing that it’s better that the government can be sloppy about planning and provisioning property sales because they know they can just take back whatever they need later? This system is superior?
“because they could never get it back again, ever, once it was released to private owners.”
What? Just buy it. I’m sure any civil engineer worth his degree can plan 3 alternate routes for any signficiant piece of infrastructure. If a seller wants to be a jerk and demand an exorbitant price, they’ll use another route and he’ll get nothing.
Do you believe that the principle of private property is a fiction that exists at the sanction of the government so long as it leads to economic reward?
Francis,
“odd, the way that the usual conservatives on blog suddenly urge courts to be activist and invalidate an exercise of one of the oldest powers of the state.”
Cripes, who’d that be? Me and Phil? Ask around.
Nobody’s asking for the courts to invalidate eminent domain. I asserted in my original post that I don’t like its existence, but I acknowledge that it’s in the Constitution and I’d hardly approve of the SCOTUS ignoring it. However, the 5th amendment calls for eminent domain to be in the service of ‘public use’ and it is certainly an open question as to what exactly that includes. If the SCOTUS finds that forcing someone to sell their home so a private shopping mall can be built is not in fact a ‘public use’, that would hardly be ‘activist’.
“horrible anecdotal cases used as the sharp, piercing ends of largely unrelated agendas”
Uh, what’s my agenda? Honestly, fill me in.
Many tasks would be considerably more difficult, but that’s true of any case where respect for rights trumps expediency.
Let the glibness begin! I’m pretty sure that my point was not that eminent domain was justified by expediency, but rather that it was justified because it tends to foster market freedom rather than top-down government control of land use.
Ah, rhetorical excess. This seems to be a long euphemism for ‘offer to sell’. In which case, I agree. Starbucks just ‘stuck me up’ for 2 bucks for a brownie. Bastards.
Ah, snarky oversimplification. Call me back when failure to obtain that exact brownie, that big corner piece with the fudge layer and all the nuts, fourth from the back on the bottom, destroys a year’s worth of planning and somehow makes all the other food you have bought in the last year inedible. What’s that you say? But you already ate and digested all the other food? Wow, I guess that means the brownie metaphor is bulls**t. Funny, that.
The purpose of eminent domain is to allow government to appropriate private property as long as the ‘common good’ achieved passes some test. That test has been enervated over time and if New London goes poorly, the test will eliminated completely. Government will merely have to demonstrate a reasonable belief that the appropriation would lead to increased property taxes.
Ah! something on which we completely agree. If the government action in New London is upheld, this will be an endorsement of an unconscionable corruption of public power by private influence. The government action in New London is frankly disgusting, especially in that the eminent domain power was seconded over to a commission made up, at least in part, of the very developers who stand to gain the most from the expropriation. But the abuse of a power does not mean that the power itself is fundamentally unclean; it means that a problem has been identified and should be addressed. I have some faith that the SCOTUS took the case in order to smack down the municipality. Boy, I hope I’m right about that.
You’re arguing that it’s better that the government can be sloppy about planning and provisioning property sales because they know they can just take back whatever they need later?
Um, no, I’m arguing that it is better that the government stay out of the business of “planning and provisioning property sales” as much as possible, so their interference in the development of the market is limited to what they determine they need, rather than what they believe that might someday need (a necessarily broader grasp).
What? Just buy it. I’m sure any civil engineer worth his degree can plan 3 alternate routes for any signficiant piece of infrastructure. If a seller wants to be a jerk and demand an exorbitant price, they’ll use another route and he’ll get nothing.
Ah, that vaunted libertarian simplicity, shoving the real world under the carpet like so much dirt. Out here, even though there may be three (or more) ways to get from point A to point B, geography and geotechnical conditions commonly produce a situation where Option 1 costs $100, while Options 2 and 3 cost $10,000 each. In your world, the landowner whose plot is essential for Option A must simply price his plot at $9899 or below, or else the city will move on to the other options. Voila! The market works. The problem is that this mechanic tends to group the land prices around the upper, rather than the lower limits of the price spectrum, or, god forbid, the “fair” median. In the libertarian paradise, maybe this is okay because of the great feeling of righteousness it kindles within the bosom of the truly independent man. In my heart, it only kindles the spectre of no more light rail for my city, and a burgeoning population cramming itself in more and more dense multitudes onto roads that the surrounding communities can never afford to expand.
Do you believe that the principle of private property is a fiction that exists at the sanction of the government so long as it leads to economic reward?
No, I don’t. Do you believe that the principle of private property is a fetish that must be placed before any other consideration of social or even economic development?
If the SCOTUS finds that forcing someone to sell their home so a private shopping mall can be built is not in fact a ‘public use’, that would hardly be ‘activist’.
Amen, brother/sister. You and I are, I believe, fervently hoping for the same outcome in this case.
Uh, what’s my agenda? Honestly, fill me in.
You are right – I don’t know you, or your agenda. I have just heard this argument from a lot of people who are really just rebadging garden-variety conservative government-bashing with libertarian trappings to make it seem more thoughtful. I apologize for tarring you with that brush.
Elbows seem a little sharp on this one, though I think we all agree on what a correct decision in New London would be, so I’ll just observe that here in Japan, eminent domain is much much weaker than it seems to be in the states. Often times, you drive down a very nice road and suddenly, it changes to a cramped two lane and then resumes, basically because the guy owning that chunk of land refuses to sell. The government has forced the issue occasionally (most notably when they built Narita airport)but even then, they have often pulled back. In fact, the second runway at Narita has a bend in it to move around a holdout’s piece of land. Here are a few links
here, here. In addition, this article about problems with the rebuilding after the Kobe earthquake is interesting in light of this discussion. I agree that it is pretty ridiculous, but given the bureaucratic mentality of Japanese officialdom, I would be very very afraid if they wielded stronger powers.
Thanks for the context! Very interesting – my defense of eminent domain is largely grounded on the events of the 1800s, and the annexation and re-release of huge (and I mean bloody huge) chunks of land into private hands, an experience not really analogous to anything in Japanese constitutional history. However, what you are talking about does tend to support what sidereal said in his message above – certainly Japan is no “agrarian backwater,” at least not taken as a whole, so apparently modern society can stumble along notwithstanding a weaker eminent domain. I’m not sure I wouldn’t support a reform of the eminent domain power (and, as you note, we all agree that that can start right here, with New London); but my primary reaction was to sidereal’s statement that he wished the power had never existed; I think we would live in a far different, far weaker country if that were true, and, given the accomplishments of American power in the last centuries (both great and terrible), a far different world.
How’s that for rhetorical excess?
Hmmm, I really try to avoid mind-reading fouls.
here’s where i see the issue. In most areas of the law, courts refuse to try to determine the subjective intent of the legislature. This is generally known as the rational basis test, which means that so long as the public agency’s lawyer can come up with any plausible justification at trial for the act of the agency, the courts will accept that explanation. Only in limited areas (race, sex) will the courts test the connection between the purported rationale and the effect of the agency action. This is a critical restraint on judicial activism.
Kelo, it appears to me, presents a very simple case– whether increased tax revenues absent any finding of blight constitutes a public use. Phrased that way, the correct answer is No. But since i haven’t read the briefs, i don’t know whether i’ve properly understood the case.
If there are additional findings which support a more traditional view of public use, then I think the Supremes have a much tougher case. Do they inquire into the basis of these additional findings or not?