159176~An erosion of property rights—Residents surprised at
local government’s exercise of eminent domain power against
homeowners, multi-generational farmers and small business owners
may be in for greater shock. Armed with the Supreme Court’s 5-4
decision in Tahoe Sierra Preservation Council v. Tahoe Regional
Planning Agency, which held that local government need not
compensate landowners when taking their property, we are seeing
rapid erosion of personal property rights under the guise of
”
affordable housing
”
and other schemes.
It became abundantly clear in oral argument that the homeowners in Kelo v. New London-represented by the ultra-right Institute for Justice-are not going to win their case. The case centers around the meaning of “public use” in the context of a phrase in the Fifth Amendment: “nor shall private property be taken for public use, without just compensation.” New London wants to develop the town by exercising eminent domain over housing and businesses and then turning over the property to private developers. This, the IJ lawyers say, is not a public use, and the Court should raise the “level of scrutiny” for eminent domain in order to see that the taking is for a public use. The Court isn’t going to do it.
The importance of this case is that the exercise of eminent domain in New London is just one of about 10,000-documented by the Institute for Justice-in which developers, in collusion with public officials, have taken the easy route to securing property by getting politicians to use their power of eminent domain over housing and businesses. This “eminent domain for hire” has probably been carried out somewhere near you. It’s outraging homeowners-it led to this Supreme Court case-but more importantly, it is setting up a confrontation with the government. Sooner or later some group of homeowners is going to refuse to leave when the sheriff shows up. They will barricade themselves inside their homes, which will be surrounded by people practicing civil disobedience. Then what? Let’s see if there is a way to avoid this confrontation.
An examination of the notion of “level of scrutiny” will show you why the Kelo homeowners are just about to lose. Until Oliver Wendell Holmes came along, the Court felt free to impose its own social philosophy on legislation, and to find it unconstitutional if it conflicted with that philosophy. At the turn of the century, Progressives argued that this was putting the Court on a collision course with the political system, which was generating reform legislation. That is exactly what happened, and it caused FDR to suggest expanding the Court in order to add judges who would be sympathetic to reform legislation. The move was called “court-packing” and Congress rejected it. But the Court got the message.
It was the same one Oliver Wendell Holmes had been preaching almost his entire career. He said that if the legislation was RATIONALLY RELATED to a LEGITIMATE government interest, it should be found Constitutional: it was not the province of the Court to second-guess legislatures in their judgment of the need for legislation. Specifically, the Court should not interfere in government exercise of eminent domain, or in Congressional determinations under the Commerce Clause, if they met that standard.
This, however, suggested a sliding scale for facts. For example, what sorts of government actions had to be NARROWLY TAILORED to further a COMPELLING government interest, a much higher standard of review. It turned out that those were actions involving such things as an establishment of religion, violations of protected speech, or involuntary servitude. If the Government tried to do any of those things, such actions would be found unconstitutional unless they met the stricter standard. Actually, for these particular facts, the standard seems to be that they are absolutely forbidden. That is, currently the Court cannot imagine any circumstances in which it would find constitutional an act of involuntary servitude-whether imposed by government or an individual.
Now we see why the Court isn’t going to raise the “level of scrutiny” for eminent domain. The “private use” distinction is really a false one. It invites evasion by governments, who could always dream up some way of retaining official control while relinquishing unofficial control to developers. More importantly, it would put the Court in the business of deciding what is a “public use,” and balancing any interests of the property owners against the interests of the government. That would put the Court back into the political arena, and they will have none of it. Their feeling is, if politicians make unpopular decisions regarding eminent domain, throw the rascals out.
If you were on the Supreme Court, you wouldn’t raise the “level of scrutiny” for eminent domain, either. But would you raise it for some other, related fact? Let’s see. Although even the shouting is over now, the Court still provides that new arguments can be made by supplemental briefs, and the decision probably won’t be decided until June. The lawyers should submit a supplemental brief asking that, in the alternative, the Court raise the level of scrutiny for housing itself. Have we been down this road before? Yes, indeed, about thirty years ago, in three cases in which lawyers tried to get the Court to raise the “level of scrutiny” for facts such as housing. Lindsey v. Normet, Dandridge v. Williams and San Antonio School District v. Rodriguez all showed a Court unconvinced by arguments that housing was like protected speech and freedom from involuntary servitude or an establishment of religion. The lawyers in those cases made a mess of their arguments, and it was reflected in the opinions of the Court. For example, San Antonio was about disparities in spending on public education, so the lawyers tried to get the Court to raise the level of scrutiny for education. Justice Powell responded: [T]he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. [Appellees] insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote, [but effective exercise of First Amendment freedoms is not a value] to be implemented by judicial intrusion into otherwise legitimate state activities. Well, although it turns out to be relevant both to inquire if other protected facts are violated in the course of violation a fact for which you are trying to raise the “level of scrutiny” and to compare your proposed fact to other currently protected facts, the Court was right in insisting that the fact must come from examining the ideological foundations of the Constitution. In short, it must come from an examination of the intent of the Founders-the very thing, it turns out, in which this particular Court is interested in vindicating. So let’s examine the intent of the Founders, to see if there is a case for raising the “level of scrutiny” for housing.
What is so special about freedom from an establishment of religion, freedom from involuntary servitude or protected speech, which gives them so much protection in the Constitution? When James Madison presented the Bill of Rights to the First Congress, he said that it “prevents every assumption of power in the legislative or executive….” The important word in that statement is “every.” Clearly, given the absolute protection afforded to, for example, freedom from involuntary servitude, he means that “every” covers involuntary servitude.
But why? This calls for inquiry into not only the history of the American Revolution, but also, the histories of the English Revolutions of 1640 and 1688. It became clear to the Founders, after studying the history of government’s relationship to, for example, establishments of religion, that government, historically, had always attempted to impose them. In the end, they had always failed to do so. Individuals avoided, evaded or resisted such establishments. The only results governments achieved were bureaucracies designed to oppress (such as the Inquisition) and grotesque distortions of human existence. Like governments’ attempts to violate protected speech, it was a miserable failure and a sorry spectacle. In the end, it led to at least those three revolutions. Lesson? People resist violations of certain facts.
From their study and their personal experience, the Founders realized that some facts simply inhere in the human condition. They don’t change, and nothing changes them. Individuals suffering violations of protected speech simply seek other venues. Individuals suffering establishments of religion, seek other forms of worship, or seek freedom from worship altogether. Thus, there are facts which, when we identify them, we understand are facts of the individual: they tell us that we are dealing with the individual. They tell us to back off.
Thus, it’s never enough to say that facts are important, or that facts are related to already-protected Constitutional facts. It is important to say why, in their own terms, facts are facts of the individual. Then the Court will raise the “level of scrutiny” for them. How do we know if a fact is a fact of the individual? Here are some tests. We are very likely dealing with a fact of the individual-deserving of a high “level of scrutiny”-if the government (or a private party)
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.
Is housing one of these facts? See for yourself:
1. New London is out to destroy this housing;
2. New London itself has granted that these homeowners will have to, and will, seek other housing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. as the Institute for Justice has documented in excruciating detail, the Kelo 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. no serious attention has been given by New London to showing that their eminent domain action is narrowly tailored to achieve a compelling (which includes a very detailed and well-articulated) government purpose. All that is asserted is that it will aid development.
So it’s pretty clear that, at least with respect to the housing involved in the Kelo case, we are dealing with a fact which deserves a high “level of scrutiny.” New London should be required to show that they have a very important goal in seizing this housing, and that the only way to promote that goal is by seizing housing.
Why then didn’t the Institute for Justice make just that argument? In my conversations with their lawyers, it became clear that it was because the IJ doesn’t believe there is any right to housing. They indicated that their goal was to lessen the power of government. Period. In whatever way they could, for whatever reason they could. Thus, we have here a textbook case of what has lately been noticed: the right wing is absconding with the progressive agenda. Of course, in the process the IJ lawyers are sacrificing their clients’ interests to a political agenda, and probably the donations to IJ will flow once the Kelo homeowners have been made martyrs after their inevitable loss. But what happens if the Kelo homeowners decide not to go gentle into that good night?
In any event, if YOU, the reader, are ever threatened by eminent domain over your housing, and you know the Kelo argument has lost, use the argument above, which is elaborated in this article:
Ryskamp, John Henry, “Kelo v. New London: Deciding the First Case Under the New Bill of Rights” . http://ssrn.com/abstract=562521
