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Kelo Folly Ends in Irony

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One of the worst Supreme Court decisions of my lifetime came when the court ruled that the city of New London, Connecticut could legally use eminent domain to seize the homes of Susette Kelo and her neighbors and then release that property for private development, using the power of the state to take away the rights of individuals for the benefits of politically connected business interests.

Supreme Court Justice Sandra Day O'Connor wrote in her dissent that “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner.” In his dissent, Justice Clarence Thomas wrote that:

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'

The Kelo decision led to a nationwide revolt against eminent domain seizures and a rise in prominence of property rights activists. Here in Texas we just voted on and passed a constitutional amendment prohibiting the seizure of private property for commercial use and similar laws have been passed in many other states.

Now, in a supreme irony, the Pfizer corporation on whose behalf the land was seized and the homes were torn down, has decided to move its operations out of New London, abandoning its existing facility there, and giving up plans to build on the land which the city government went to the Supreme Court to seize for them. The land where Kelo's cute pink bungalow and the homes of her neighbors once stood will now lie vacant.

Rather than creating new jobs as promised, Pfizer is now taking away over 3000 jobs from the community and rather than bringing in new tax revenue as promised, they are going to put more of a burden on the private taxpayers of New London, all of this in addition to the lives displaced and the harm done to the original residents of the property. The city government made a bad bet when it offered the land as a bribe to Pfizer with no guarantee that they would follow through when their bottom line dictated that they should move on.

If there were ever an argument to be made against the evils of the state-corporatism which has pervaded our nation, from the corporate bailouts in the halls of Congress to the tax abatements and eminent domain seizures which state and local governments engage in, this ironic outcome in Connecticut has to be a cornerstone of that argument.

For free enterprise to work, we have to remember that business and government must be kept separate. It is the function of business to make money and produce profits. It is government's job to regulate business in a reasonable way, and protect the people. It is not the proper role of government to be a partner in business, or to interfere in how business is conducted, except when it involves protecting the public from fraud and harm. Most of all, government should never take from the citizens to enrich a business, through taxation or through direct seizure of property. These practices, which are particularly favored by the political left, have got to stop, and the rights of individuals must be respected, both at the federal and local level.

Now an empty lot full of broken bottles, rubble and weeds serves as a monument to the folly of government favoring the interests of a business to the detriment of the rights and welfare of the people.

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About Dave Nalle

  • John Ryskamp

    “The city government made a bad bet when it offered the land as a bribe to Pfizer with no guarantee that they would follow through when their bottom line dictated that they should move on.”

    I wrote a book on the Kelo case and the opposition to eminent domain (The Eminent Domain Revolt, New York: Algora 2006), so I can tell you that your facts are wrong.

    As reported in the local newspaper AFTER the Kelo decision, it was Pfizer which decided it wanted the land, and then proceeded to capture the government. This is why there was no government purpose. There had been a Stiglitzian “capture” of government purpose. It was now private purpose.

    This was the argument the rightwing Institute for Justice refused to follow, because it was lazy, didn’t want to do its homework, and preferred to use the case for publicity purposes, instead of winning it.

    Also, you don’t understand what is at issue in the opposition to eminent domain. Almost every fact (including the housing involved in the Kelo taking) enjoys only minimum scrutiny under the current understanding of West Coast Hotel v. Parrish (1937). This case gave us the scrutiny regime. There is basically NO individually enforceable right in almost every fact.

    If you are proposing to restrict eminent domain, you are proposing to raise the level of scrutiny for the facts involved in the taking.

    WHY THE LAWYERS DON’T ARGUE THIS

    They don’t understand the law very well, so they don’t understand what you have to show to move a fact like housing above minimum scrutiny. Lindsey v. Normet (1972), which established minimum scrutiny for housing, was argued by lawyers who didn’t understand the law, and decided by judges who didn’t understand the law.

    To show a fact deserves higher than minimum scrutiny, you have to use the West Virginia v. Barnette analysis (used to give exercises of religion strict scrutiny). The fact has to be shown to be

    1. a fact of human experience
    2. which history demonstrates
    3. is not affected by attempts to affect it.

    WHY THE RIGHT WING DOESN’T WANT NEW INDIVIDUALLY ENFORCEABLE RIGHTS

    1. So-called “property rights” advocates don’t believe in individually enforceable rights. I talked to a lot of them writing the book, from Institute for Justice on down. They believe in POWER, not in RIGHTS.

    WHY DON’T LIBERALS WANT EXPANDED INDIVIDUALLY ENFORCEABLE RIGHTS

    These are people who think history shows that the political system is best when it comes to protecting important facts. They also don’t believe in individually enforceable rights.

    However, as my book showed, we are actually shifting out of the scrutiny regime into the maintenance regime. It turns out that the supposedly broad grant of discretion in the political system over facts, is grounded on the “maintenance” of those facts. “Maintenance” is even used in U.S. v. Carolene Products, which supposedly stands for the proposition that there are “social” and “political” facts, the former of which are left to the political system.

    In short, we are moving toward a view of these cases that they stand for the proposition, not that law is rationally related to a legitimate government purpose (that’s minimum scrutiny), but rather, that the law maintains important facts.

    It is, curiously, the very right wing middle class which is pushing this. Why? Because their facts are being threatened. So look for a very curious situation in which a basically reactionary, police state-minded class, winds up demanding more individually enforceable rights.

    Poor Kelo: her right to housing was ground up in this lurid political process.

    But you know what? I talked to her: even SHE did not believe in an individually enforceable right to housing.

    You’re going to see a big disaster in America because so many Americans are uneducated and reactionary. Not a good population to save itself.

  • Doug Hunter

    Thanks for the update. The silence by other commenters on this site speak volumes. We are a nation of statists, spoiled entitled children who want big daddy government to take care of everything for us. Everything comes at a price though and the price for a government security blanket is our freedom, liberty, progress, and innovation.

    Kelo is just one direct symptom of the disease, the piper coming for payment. Others are hidden but will soon come to a head… our status as a $13 trillion debtor nation that produces nothing and our fall from superpower status should wake us up but it won’t.

    So remember when they throw you out of your house to raise the tax base to pay for a program you never asked for and don’t want or when they throw you in jail for not properly participating in their scheme for your life that it’s all for your own good.

    We are a nation who has traded freedom for security and in the end we will have neither.

  • http://www.republicofdave.com Dave Nalle

    John, I’m not entirely sure what your agenda is, but you clearly are just spamming your view of this subject without much regard to what you’re responding to.

    I don’t believe in a “right to housing” either. But I do believe in a right to retain one’s property and the fruits of one’s labor and not have those things seized by the power of the state.

    Your disconnect from reality is demonstrated by your description of the right-leaning middle class as having a mentality which supports a police state. What a load of bull. To categorize an entire very large and vocal group that way is arrogant and a demonstration of very imprecise thinking.

    You also draw a false distinction. Whether Pfizer wanted the land or the government wanted more revenue from Pfizer is not germane. The unholy union of their interests is the problem, not who it was who initiated the seduction.

    And BTW, anyone can write a book. It doesn’t give you any special authority.

    Dave

  • http://blogcritics.org/writers/christine-lakatos/ Christine

    Thanks for the insight into this matter, Dave. What a travesty when the power of government goes so far as to intrude on our property and anything else for that matter.

  • Arch Conservative

    The thing I remember most about this case was Hoawrd Dean running his mouth on TV after the decision.

    He said something like “Now George Bush’s Supreme court wants to take your private property away

  • Arch Conservative

    the rest of my comment got cut off………..

    well anyways it was an odd thing for Howie to say considering Bush hadn’t made an appointment yet at that point in time and it was all the liberals on the court who sided with eminent domain.

  • Dan

    “…it was all the liberals on the court who sided with eminent domain…”

    Yes, and Howard Dean is a corrupt and vile man.

    I think Dave should have noted the liberal ideology of the justices who were for this idiotic decision.

  • http://www.republicofdave.com Dave Nalle

    I figured mentioning that it was Thomas and O’Connor who dissented on the decision was a strong hint.

    Dave

  • John Ryskamp

    “You also draw a false distinction. Whether Pfizer wanted the land or the government wanted more revenue from Pfizer is not germane. The unholy union of their interests is the problem, not who it was who initiated the seduction.”

    Government purpose under minimum scrutiny (rationally related to a legitimate government purpose) turns on this distinction. You may not like the distinction, but it is the law–and that is the problem.

    And this is completely incoherent:

    “I don’t believe in a “right to housing” either. But I do believe in a right to retain one’s property and the fruits of one’s labor and not have those things seized by the power of the state.”

    If you knew ANYTHING about this subject, you would know that the “property rights” folks are so unsophisticated that they have not even been able to say whether property is a fact or a doctrine. And obviously neither do you. They haven’t been able to convince a SINGLE court of their “point of view”–either a conservative court OR a liberal court. The reason, I guess, is that they show themselves to be just as incoherent and uninformed as you.

    And BTW, anyone can write a blog. It doesn’t give you any special authority. Certainly you don’t have any, because you are completely uneducated. I know what I am talking about. You don’t.

    In case you would care to educate yourself, you should read about the dismal rhetorical skills–and dismal failures–of the “property rights” folks:

    Lazarus, Richard James, The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court. Hastings Law Journal, Vol. 57, No. 4, Winter 2006; Georgetown Public Law Research Paper No. 847666.

  • http://www.republicofdave.com Dave Nalle

    John, I don’t really know the arguments of the property rights folks. I just go by what was in the two dissents in the Kelo decision which seem quite clear. Are you suggesting that O’Connor and Thomas are “completely uneducated?”

    The fact is that people do not like the idea of having what is theirs taken away from them and then used for someone else’s profit. You argue that it is legal. That doesn’t make it right. There are many unjust laws and they should be opposed, not venerated. Tyranny wearing the mantle of justice is still tyranny.

    You may know what you’re talking about, but IMO you’re talking about the wrong thing and you clearly don’t get why people are concerned about the abuse of eminent domain. No one disagrees that these takings are legal. If asserting their legality is the extent of your argument then you’re wasting everyone’s time.

    Clearly you’re unwilling to addres the underlying issue of basic rights under natural law and the expectation which citizens have to have their property rights protected.

    I can see why your book has a 2 rating on Amazon.

    Dave

  • http://ruvysroost.blogspot.com Ruvy

    I remember that one of the few topics I studied in law school that actually bothered me was eminent domain. I’m being reminded why reading this article, and the comment thread following. Eminent domain amounts to theft under the color of sovereignty – and it stinks. But, sometimes it’s necessary – which also stinks.

    What really stinks more is the theft of a woman’s home to benefit a drug company that abandons the town that breaks the law to help it by ruining the woman’s life. Who seduced who is irrelevant. Pfizer ruined a whole bunch of lives – and a bullet in the head of several of its executives is the appropriate solution here, along with the seizure of its assets to benefit those whose lives were ruined. If a few selectmen get hung in the process, it wouldn’t hurt either.

  • Cannonshop

    11:

    The key thing missed in the Kelo decision, is that the concept was eminent domain for Public use. You know, Roads, Highways, ports, airfields, and military bases. These are self-limiting items that are provably necessary (or limited but un-necessary), in that nobody’s going to be making profits off them (or at least, making them for long) on an exclusive basis.

    It’s ‘Equal Justice’ when it’s limited. What the Kelo decision DID, was eliminate the assumed restriction, and in the process, gave the “Go Ahead” for a VERY corrupting situation to develop-that being, the ability to reward cronies with the goods and property of citizens one wishes to harm-without consequences, and without the need to prove an actual public NEED.

    Under Kelo, a corrupt Corporatist Republican administration could target a mostly-democrat district for a new Shopping Mall to be built by a major campaign contributor, disperse the voters of said district to the four winds, then the developer could welsh the deal and there’s no consequences. (just as Democrats in New Haven did to the zone in the Kelo case.)

    Why Republicans in my example? because corruption runs deep in BOTH parties, and the Kelo decision is a local-government nuke for gerrymandering without having to go through a costly and time-consuming legislative session or other public board.

  • http://handyfilm.blogspot.com handyguy

    Reacting to this issue ideologically may be a fun way to blow off steam, but it’s largely irrelevant.

    Anthony Kennedy, the deciding vote in the case, is not exactly a flaming liberal. The decision was not some radical new interpretation of the law; it was based on precedent. Liberal editorialists at the time [NY Times, Washington Post] supported the decision because they wanted to leave the door open to jump-starting the economy in run-down cities like New London.

    But public reaction led to political changes, changes in the law, which is probably the appropriate way to redress it. 21 states have since amended their eminent-domain policies specifically to prevent this kind of seizure, and 22 other states made related changes.

    There hasn’t been a flood of eminent-domain seizures in the 4 years since the decision. Frothing right-wingers like to hold on to a case like this and stoke their anger about it — but there is not much if any danger of some big eminent-domain trend. Comparing this to bailouts of banks and auto companies is a stretch, too — especially since the government has expressed an intention to get out of the bank and auto businesses as soon as possible — not exactly the sound of gathering momentum.

    And Kelo’s house? It was relocated to another neighborhood at government expense. [It’s easy to forget amid all the mouth-frothing that the government was buying her house, not throwing her penniless onto the streets.]

    And she got to become a Cato Institute heroine, a sort of right-winger’s Rosa Parks.

  • http://blogcritics.org/writers/christine-lakatos/ Christine

    Dave: did you hear about the eminent domain case in New York/New Jersey? I am sure you have, just cheking

    Builders Net Win in N.Y. Case

    WSJ November 25th, 2009 EXCERPT…
    Tuesday’s 6-1 ruling by the New York State Court of Appeals allows the contentious $4.9 billion, 22-acre Atlantic Yards project in Brooklyn to proceed.

    The decision is a blow to private-property owners who have argued that they are defenseless in protecting their ownership rights once a government deems their land necessary for eminent domain, or the “public good.”

  • John Ryskamp

    “basic rights under natural law”

    “natural law” means important facts, and the test for important facts is laid out in West Virginia v. Barnette.

    You’re still ignorant, still incoherent, still a blubbering fool. Grow up, clown.