Strengthening Constitutional Self-Government

No Left Turns

New Orleans, New London, and New Haven

Ken Masugi’s rather generous praise of an interesting but somewhat confused WaPo op-ed provoked an intemperate, and indeed nasty, response from this man.

My two cents’: Yes, eminent domain is often used by the politically connected against those who lack the connections, but connections don’t always simply follow class. We in Atlanta, for example, even build highways through well-to-do neighborhoods.

Any reader of John Locke would have to concede that natural property rights are civilized and limited once we enter civil society, and that the principal limitations are to be justified on behalf of the public good. The use and abuse of eminent domain should be regulated, above all, by a representative and hence responsive legislature and secondarily by a judiciary that upholds the Constitution. At the same time, Locke’s emphasis on the natural roots of "civil" property rights ought to educate citizens and political leaders about the intimate relationship between property and individuality. We are, according to Locke, individuals who express ourselves largely through our labor, which is "reified" in property. If the smart undergrads who made their way into Yale Law School, and their professors, paid as much attention to the roots of classical liberalism as they appear to have done to Marxism and neo-Marxism, perhaps they would be able to engage Ken’s arguments without resorting to ad hominem attacks.

Discussions - 13 Comments

"Any reader of John Locke would have to concede that natural property rights are civilized and limited once we enter civil society, and that the principal limitations are to be justified on behalf of the public good"

I’m a little disappointed in your choice of limitation.

The constitution clearly states "public use". To change the meaning to "public good" is a usurpation of power.

To broaded the definition of "public use" to include increased tax revenue is to make the restriction meaningless, effectively removing the clause as a check on the power not only of government, but of man over man.

The use of public funds should be bound to the advancement of "public good".

Changing "public use" to "public good" reduces the chances that "public good" will be the primary controller of governance.

Regardless of reasonable interpretation of the clause, if we are to take your statement at face value, the "public good" is best advanced by restricting takings to a strict definition of "public use"

Don’t know all my carraige returns were stipped.

I was writing about Locke, not the Constitution, so I’ll stick with "public good" as a characterization of JL’s position, while granting you "public use" in the Constitutional sense. The complicating factor is that, even in the Constitution, property may be "taken," through taxation, for the "public good," as defined by the legislature and controlled by the voters.

Here we go again:

My thoughts about the 5th amendment to the Constitution. Feel free to refute or quibble.

1. The Constitution requires just compensation for public use of property. The 5th amendment does NOT prohibit taking property for private use, nor does it even require compensation for taking property for private use. The only way to morph the 5th amendment into what certain groups argue for is to clothe it in the "spirit" of the Bill of Rights. Whenever courts use the "spirit" of the regime or law, watch out. Using the "spirit" gave us Roe and affirmative action from the 1964 Civil Rights Act (an act which prohibited employment discrimination based on race, much clearer than the 5th amendment).

2. Nothing in the Constitution states that eminent domain restrictions apply to the States. One has to use the 14th amendment’s due process clause to reach this result. There is no indication that the writers of the 14th amendment intended to limit State exercise of eminent domain. The 14th amendment was intended to forbid State discrimination of former slaves.

3. Conservatives are being hypocritical. They argue that Roe is evil (other than the fact it has no constitutional basis) because it makes the entire nation adopt a common policy concerning abortion, yet conservatives would impose a common policy regarding eminent domain on the nation. This is foolish. There is less need for eminent domain in Utah (I think) than there is in the densely populated Northeast. It would probably be almost impossible to build anything new up there, or if it were certain property owners could play games and holdout for as much money as possible greatly increasing the cost of building. Each State should base its eminent domain policy on its particular circumstances.

4. The "public use" "public purpose" distinction is silly and cannot be rationally applied. If all eminent domain were required to be public use then this would mean that governments would have to own the eminent domain properties. This would result in increased government ownership of property. Private owners, on the whole, always use property more efficiently than public owners. Furthermore, eminent domain cannot rest on public ownership of property because the government may decide to sell its property at some point. Imagine that the government owned the TVA power plants, can the government never sell these plants to private owners (which would be a good thing) because it used eminent domain to get the land for the plants?

"Public use" is not workable because one has to define the "public" the use benefits. I suppose the most rational definition of public would be the citizens of the government using eminent domain. If this were the case, then the federal government would have a difficult time using eminent domain because the benefit from eminent domain would be very little for the general public, it would benefit one section of the public a lot, and burden one section of the public a lot (think TVA).

"Public use" cannot work because it limits the power of government in a way that creates an impossible choice. People have to choose to do without needed property, or they have to choose between having government own assets: the choice is between doing without goods or having more socialism and communism (bad). The only sensible way out of this problem is to expand the definition of "public use" to "public purpose."

If the "public use" standard were strictly construed then many eminent domain projects that people approve of, and think an acceptable use of eminent domain power, would not be possible. The best example is airports. Airports are not "public." They are a place where individual customers buy tickets with companies that provide them with a service, and use the airport to provide that service. This is no different from using eminent domain to create a shopping center (indeed, many airports have stores); yet certain people will accept the use of eminent domain to build an airport but not a shopping center. They claim an airport is more "public," but I do not see the distinction.

I would disagree with the op-ed (I skimmed it) because the author tries to compare big "evil" companies with individual property owners, the little guys. The author makes the mistake of not remembering that companies are owned by individual property owners. They do not represent a particular class in society. Almost any American can own and profit from company. The Kelo case involves a company owned by the public, displacing members of the public. I see no class conflict.

"I was writing about Locke, not the Constitution"


"The complicating factor ... property may be "taken," through taxation, for the "public good," as defined by the legislature and controlled by the voters."

No doubt this is true, and necessary for the functioning of the state. However, actual physical property is funamental in the maintainence of all other rights, and thus deserves the heightened "public use" protection, which the founders granted, and the people ratified.

Steve: "The 5th amendment does NOT prohibit taking property for private use, nor does it even require compensation for taking property for private use"

First, this is disingenuous or naive. Regardless of the text, nobody has ever believed that private to private transfer of real property by state coercion is appropriate. There are plenty of refutations available on-line that fit in fine with a textualist or original intent view. The much sounder argument is that the clause only applies to the federal government. I would be ok with that argument, but not that "public use" actually means "whatever the state decides, because if the state decides it, its public".

You would make Stalin proud.

[airports]... an acceptable use of eminent domain power"

I don’t find it accepable.

Regardless, they certainly have more public utility than a "Cracker Barrel", and at least they require a contiguous block of land and massive government oversight to run.

Shopping facilities don’t. Grouping shopping facilities into one area is a matter of choice, not necessity. In fact, in many instances these shopping centers are replacing long established small businesses.

Not being a libertarian myself, I think there’s something to points 1, 2 and 3 of Mr. Parks. What would a relatively consistent and unhypocritical theory of judicial restraint look like, one that really constrains without emasculating the Court? If Mr. Parks is completely wrong, why is he completely wrong?

Mr. Koh’s response could, and maybe should, have skipped the "former employee of Justice Thomas’s EEOC" jab but, to be fair in the analysis, Mr. Masugi certainly seemed to initiate the mudslinging with his derisive and snobbish "...but it’s written by a third-year Yale law student..." conditional. Mr. Koh may, understandably, feel a bit protective of his students.

"[C]onnections don’t always simply follow class." No, but they nearly always do. Good luck finding that one exceptional instance of highways being built "through well-to-do neighborhoods" for even every 100 instances like Poletown in Michigan - heard of it? Your use of the word "even" in that last sentence of the 2nd paragraph says plenty.

J Montgomery,

I’m reasonably familiar with the urban development literature, having read and taught it for a number of years. The Atlanta case, which I know best, adds race to the mix in ways that complicate any simple class analysis. The politically connected can use their power to become wealthy, which explains something (for example) of the rise of Atlanta’s African-American upper class. (To be clear, I’m not speaking here of corruption, although that too plays a role in Atlanta politics, but rather of access, for example, to construction contracts and airport concessions.) My larger point is that the educative function of "property rights talk" is in no small measure to encourage vigilance on the part of citizens. I part company with many libertarians on this ground, as I affirm that property rights in civil society are not absolute.

On "who started it," I took Ken to be excusing rather than accusing. A student, however accomplished she is (being an editor at the Yale Law Journal is impressive; I’m sure that within a year or two of graduation, she’ll either be clerking somewhere or in a position to buy and sell me several times over), may lack the polish of an experienced policy intellectual or commentator. The flaws in her article, such as they are, flow at least in part from her inexperience, and, as such, will likely be remedied over time.

Test line feed DOS

Please exuse the test.

Hmm. I’m using Mac Safari. Even posting with DOS’ line feeds fails. Is this a known problem? Please forgive the off-topic, but I would like to post here and be readable.

If you want to start a new paragraph, you need to click on "New Paragraph."

"Comment 11 by John Moser

If you want to start a new paragraph, you need to click on "New Paragraph."

OH. Well, that’s embarassing.


Thank you for being kind about it ;-)

Harold Koh is a angry, petty man.

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