How does government (ab)use of eminent domain against individuals tie into government regulation of big business tie into? Part of the tie-in is private property. So we need to ask, can’t we distinguish between the rights of individual owners, mom and pop stores, etc. and the rights of industrial corporations and other big business?
Unfortunately, U.S. legal doctrine treats the corporation as a person. So, the more libertarians work to expand the rights of individual private property, the more they expand the claims of Exxon, WR Grace, Dow, Halliburton, and other multinationals to be “liberated” from government regulation and oversight. Can we both protect individuals from big government and, at the same time, empower big government to restrain and regulate industrial businesses?
It would be an interesting exercise to see how Talmudic law might untangle the knots that American law has tied itself into over big business regulation. Jewish law does posit a version of eminent domain for public uses. (e.g., mSanh 2:3, mBB 6:7) In the medieval period, rabbis assigned eminent domain and other public powers to the “seven trustees” of the city. For more info: David Novak, Covenantal Rights: A Study in Jewish Political Theory (pp.209-213) and this Jan 2005 article by Allan Arkush in Polity.
Furthermore, Jewish law can readily differentiate between the property interests of individuals and corporations. Indeed, Jewish law does not necessarily even admit the limited liability corporation as a valid entity (except via the validity of secular commercial law). We might imagine, therefore, that rabbinic judges could restrain eminent domain such as to prevent governmental abuses and, at the same time, they would not handcuff the government from its environmental regulation of the business sector.
Article comments
1 - John Ryskamp
Here is email regarding a petition for rehearing of Kelo.
Dear John:
Thank you for your continued interest. I will relay
and discuss the same with the other attorneys. Take
care.
Scott
----- Original Message -----
From: John Ryskamp
To: sawyerlawyer@myeastern.com
Cc: saviak@proprights.com ; jberrios@herald.com ;
ligree@nytimes.com ; k.moran@theday.com ;
mckenzie@uic.edu ; TEdwards@cdpublications.com
Sent: Saturday, June 25, 2005 3:40 PM
Subject: Kelo
Hi Scott:
You represented the Kelo homeowners before the
Supreme Court. I have no idea whether you are
planning to petition for a rehearing on different
grounds, but I think you should. This time you should
argue not to raise the level of scrutiny for eminent
domain; rather, you should argue to raise the level of
scrutiny for housing itself. I think the Court is
waiting for you to make that argument.
In the Raich case, Justice Stevens, writing for
the Court, just recently said that the Court is
willing to listen to arguments for raising the level
of scrutiny for the underlying facts of a case. As
you may know, the Raich lawyers argued to raise the
level of scrutiny for the Commerce Clause. In Kelo,
you argued to raise the level of scrutiny for eminent
domain. Neither argument work.
But a different argument will work. Justice
Stevens (who also wrote Kelo) said in Raich:
"The case is made difficult by respondents’ strong
arguments that they will suffer irreparable harm
because, despite a Congressional finding to the
contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not
whether it is wise to enforce the statute in these
circumstances; rather, it is whether Congress’ power
to regulate interstate markets for medicinal
substances encompasses those portions of those markets
that are supplied that are supplied and consumed
locally….[Respondents do not contend] that any section
or provision of the CSA amounts to an unconstitutional
exercise of Constitutional authority."
He is saying that the "question before us" was the
wrong question, and that the lawyers should have
argued the underlying fact of medical care. They
should have argued that the law "amounts to an
unconstitutional exercise of Constitutional authority"
because it violated the right to medical care. They
should have argued that there is an individually
enforceable right to medical care.
Likewise, you should argue that there is an
individually enforceable right to the fact underlying
your case: housing. The Kelo homeowners can petition
the Court for a rehearing "on the merits" (Rule 44).
The Court will grant rehearings to consider
"historical evidence" bearing on the Framers' intent.
Reid v. Covert, 352 U.S. 901(1956). The Kelo case is
based on the Fifth Amendment. When James Madison
presented it to Congress, he said that it "prevents
every assumption of power in the legislative or
executive." This is the historical evidence bearing
on the intent behind the Fifth Amendment.
What did Madison mean when he used the word
"every?" He meant a fact of the individual. A fact
of the individual is a fact of human experience which
does not change even when government seeks to destroy
it.
A fact of the individual is one in which
government
1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed,
only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could
achieve the goal.
Housing is such a fact:
1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other
ousing;
3. Association, speech and several other
protected facts are sought to be destroyed by this
eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between
developers and politicians to use eminent domain to
turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly
tailored to achieve a compelling government purpose.
Other highly protected facts--such as protected
speech and freedom from involuntary servitude--meet
these tests. The Court is waiting for you to compare
these facts to housing, and claim that, for
Constitutional purposes, housing is identical to them.
Then the Court will raise the level of scrutiny for
housing, and you will save your clients' housing.
You may also want to take a look at Ryskamp, John
Henry, "Kelo v. New London: Deciding the First Case
Under the New Bill of Rights" .
http://ssrn.com/abstract=562521
Please let me know if you have any comments or
questions.
Cordially yours,
John Ryskamp