Vanderbilt lawprof James Ely – a leading expert on constitutional property rights – has an interesting column on the relevance of property rights to the current Supreme Court nomination:
In seeking a replacement for retiring Supreme Court Justice John Paul Stevens, President Obama indicated that he wanted to name someone in the Stevens mold. Among the qualities of Justice Stevens that Mr. Obama hoped to find in a successor, the president noted “a keen understanding of how the law affects the daily lives of the American people.”
However, in at least one important area of constitutional law – the rights of property owners – Justice Stevens’ record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals….
Justice Stevens’ propensity to minimize the rights of property owners was demonstrated vividly in his opinion in the controversial case of Kelo v. City of New London (2005). At issue was a city economic redevelopment plan under which land acquired from residents through eminent domain would be transferred to private parties for the construction of new residences, stores and recreational facilities…. Pfizer Corp. helped instigate the redevelopment plan in the hope that the new facilities would benefit its planned new headquarters. The area slated for redevelopment was a middle-class neighborhood that was not blighted or dilapidated. A few of the neighbors challenged the condemnation on grounds that it was not permissible under the takings clause of the Fifth Amendment, which limits the exercise of eminent domain to “public use.” Writing for the court majority, Justice Stevens rejected this argument and upheld the taking of property for economic development purposes. He stressed heavy deference to governmental determination of what amounted to public use and was especially impressed with the notion that this taking was part of a development plan….
Because Justice Stevens barred courts from attempting to “second guess” the quality of a plan, as a practical matter, municipalities could easily prepare a plan that in reality benefited private interests. There is yet another problem with the Stevens opinion. The very purpose of the Bill of Rights is to safeguard individuals from abuses of governmental power. Broad deference to the officials it is intended to restrain is inconsistent with this purpose.
In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout…..
The framers of the Constitution and Bill of Rights believed that protection for private property was essential for self-government and individual liberty. In sharp contrast, Justice Stevens invariably manifested statist thinking about the property rights of individuals. His legacy is a testament of how far we have wandered from the constitutional vision of the framers.
Hopefully Elena Kagan, Mr. Obama’s nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however, Ms. Kagan’s record with respect to property rights is a blank slate. It certainly would be appropriate for senators at Ms. Kagan’s confirmation hearing to ask about her thoughts on this subject.
As I have argued previously, there is a potential for fruitful left-right alliances in this area. Many left-wing organizations and activists, including the NAACP, Rep. Maxine Waters, and Ralph Nader, vehemently opposed the Kelo decision because they correctly recognized that giving government unconstrained power to condemn property and transfer it to private parties would tend to victimize the poor, minorities, and the politically weak.
In The Audacity of Hope, President Obama wrote that “[]o]ur Constitution places the ownership of private property at the very heart of our system of liberty…. The result of this business culture has been a prosperity that’s unmatched in human history.” Unfortunately, his first Supreme Court nominee, Sonia Sotomayor, had a very poor record on property rights, as I explained in my Senate testimony at her confirmation hearings.
As Ely points out, Elena Kagan has almost no record in this field. Hopefully, her relative openness to ideas that depart from liberal orthodoxy might come into play here.
In the federal Supreme Court, property rights issues have split the justices along left-right lines over the last thirty years. But as the left-wing reaction to Kelo demonstrates, such a division is not inevitable. In some state judiciaries, liberal judges have voted to enforce tight state constitutional restrictions on eminent domain and exclusionary zoning, a point I discussed in the last part of this article.
If he is so inclined, it is not too late for President Obama to start appointing relatively pro-property rights liberals to the federal courts. Breaking the ideological logjam that has hobbled federal judicial protection of constitutional property rights would be an admirable example of change we can believe in.
UPDATE: Readers interested in this subject should check out Ely’s excellent 2005 article “Poor Relation Once More: The Supreme Court and the Vanishing Rights of Property Owners,” where he critiqued several of Justice Stevens’ important opinions in this area in more detail. Ely’s book The Guardian of Every Other Right is perhaps the best general history of constitutional property rights, and is must-reading for students of the field.
rpt says:
This is an interesting post, but can’t we avoid the old “liberal orthodoxy” presumptions? “Liberals” are this or that. There is much to discuss beyond ideology.
May 16, 2010, 8:31 pmIlya Somin says:
There is much to discuss beyond ideology.
I agree. And I did in fact discuss much else in the post. However, the left-right split on the issue is single biggest obstacle to effective judicial enforcement of of constitutional property rights at the federal level. I think that split can be overcome, and I do not believe that liberal ideology necessarily requires unconstrained deference to the government in this area. But recognizing the problem is an essential prerequisite to solving it.
May 16, 2010, 8:37 pmMark Field says:
I understand Ely’s view of Kelo, but his criticism of Stevens strikes me as pretty unfair in light of Midkiff (and Berman too, for that matter). It’s not like Stevens personally invented the broad reading of “public use”, nor that he didn’t have a majority of the Court (and many state courts) agree with him.
May 16, 2010, 8:53 pmPersonFromPorlock says:
“Hopefully” isn’t really that good a word to see when assessing someone for an important position; viz, “Hopefully, your brain surgeon….”
May 16, 2010, 9:02 pmGil says:
“The framers of the Constitution and Bill of Rights believed that protection for private property was essential for self-government and individual liberty.”
Then how why did they put emiment domain right there in the 5th Amendment?
May 16, 2010, 9:06 pmOwen H. says:
Am I understanding this right, complaining about Kagan because she was compared to Stevens and he doesn’t like how Stevens rules on this one issue?
May 16, 2010, 9:19 pmDavid M. Nieporent says:
They didn’t. They put limitations on eminent domain right there in the 5th Amendment — and Stevens (among others) ignored those limitations.
May 16, 2010, 9:22 pmCC says:
” . . private property taken for public use” does not sound like a limitation. The question for the courts is who decides whether it’s a public use. Judges? Where is that in the Constitution?
May 16, 2010, 9:44 pmGuy says:
Ilya, I understand that you favor reading “public use” narrowly so that it includes substantive limitations on what purposes the government can use eminent domain for. I’m curious, do you think the Constitution should be read to prohibit any sort of condemnation? Is it permissible to, for example, condemn property that is clearly abandoned, and violates health and safety codes, even if the land will not be used to build a highway, or public park, or what have you, but rather sold to the highest bidder?
May 16, 2010, 9:52 pmKeith Waters says:
I have always put it this way: How many times have you ever seen Walmart, Home Depot or a developer appear before a local board meeting to say that land should be condemned for “public use,” meaning for a hospital, school or the like?
Who is benefiting when these entities ask for condemnations? That’s a rhetorical question.
May 16, 2010, 9:53 pmCC says:
Keith – That does not answer the question: Who decides? Besides private parties benefit from a road or a hospital too.
May 16, 2010, 9:59 pmbacchys says:
It is a limitation. “[P]ublic use” is the only basis for seizing property under eminent domain. Art. III says judges have the authority to determine what is “public use.”
Roads, hospitals, and condemnations for health codes may also benefit private parties, but the purpose for the condemnation isn’t to benefit a private party. Condemnations to benefit a Wal-Mart or developer like the one in <Kelo, OTOH, have as a primary purpose and effect the benefit of the private party. The benefits to the public are potential. In the case of the development at issue in Kelo, that potential was unrealized. Kelo is an object lesson in how wrongheaded the Kelo decision was.
May 16, 2010, 10:17 pmHans Bader says:
The Kelo decision violated longstanding principles of constitutional interpretation laid down by the Supreme Court two centuries ago.
Construing “public USE,” as required by the Takings Clause, to mean any asserted “public PURPOSE” (hypothetical or actual), as the Kelo decision did, renders the public use provision of the Takings Clause entirely duplicative, and without effect, since the due process and equal protection clauses have already been interpreted (under rational basis review) to require that any government action be related to a (hypothetical or actual) valid public purpose.
That interpretation flouts longstanding principles of constitutional interpretation by interpreting the constitution’s public-use requirement as adding nothing to what other provisions of the constitution, such as the due process and equal protection clauses, already require.
But as the Supreme Court pointed out in one of its most famous rulings, Marbury v. Madison (1803), no “clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible unless the words require it.”
May 16, 2010, 10:26 pmjellis58 says:
I dont think Ive ever heard anyone argue “no law abridging the freedom of speech or unreasonable search? where in the constitution does it say judges get to decide what abridges the freedom of speech or what kind of search is unreasonable?!?!?!” I think this practice of deferring to the legislature on some rights but not others (see breyers dissent in Heller) is just flat out inconsistent and a not so convicing way of trying to justify non enforcement of constituional rights some judges dont like. I think its got to be all or nothing, either judges vigerously enforce the rights in the constitution and strictly scrutinize the legislature or they dont; this cherry picking some rights as less important than others even though they are all equally in the constitution doesnt sit well with me. If your going to be deferential, you gotta do it across the board. Judge Kozinski wrote some article on this point I think.
In the extreme this practice can lead to a legal system where the actual text of the constitution counts for nothing and its all whether judges think a right is important or not. The whole point of a constitution though is that these decisions have been made and its up to judges to apply it whether they agree or not. All part of rule of law and separation of powers if you ask me.
Of course you could say as a matter of textual interpretation the phrase “public use” doesnt really mean that eminent domain can only be used for public use, thats just what its generally used for,the takings clause is really about compensation only. (actually read literally, one could see the 5th amendment requiring compensation for public use takings and permitting yet requiring no compensation at all for private takings, although I think it was O’connor who pointed out in Kelo that that interpretation would be absurd and public use has to mean something so…) But thats different from admitting that takings must be for public use and then punting the question away to the political realm.
May 16, 2010, 11:02 pmGuy says:
So you think that condemning based on the current state of the property, rather than what the government intends to do with it, is permissible? I take it then that you want courts to begin establishing what sorts of property are condemnable for being in bad condition? The problem with this approach is that it still reads “public use” broadly to mean either “public purpose” or just “government ownership (subject to later sale to a private entity)”, and is essentially an atextual “substantive public use” akin to substantive due process- and we already have substantive due process for that.
May 16, 2010, 11:25 pmMark Field says:
As fn. 4 of Carolene Products suggests, it’s reasonable for courts to defer to majority rule except in those cases where it’s clear that majority rule fails. Think of it as a market failure — even strong free market proponents agree that government intervention is necessary in such cases.
May 16, 2010, 11:36 pmgrendel_loki says:
Still can’t believe that the Takings Clause was tested on the February Bar Exam. I nearly cried when I saw that question.
Yet……..
Somehow I still passed. Found out this past Friday. :)
Sorry, I just had to let someone know. :)
May 16, 2010, 11:48 pmDesiderius says:
“Still can’t believe that the Takings Clause was tested on the February Bar Exam. I nearly cried when I saw that question.”
Relief or consternation?
“Sorry, I just had to let someone know. :)”
Joy there, all around.
= )
May 17, 2010, 12:03 amGil says:
CC beat me to the punch – the 5th Amendment doesn’t limit emiment domain, it just make sure it’s done ‘reasonably’.
May 17, 2010, 12:08 amConstantin says:
It’s not reasonable, it’s just convenient. Some rights are more equal than others.
May 17, 2010, 12:14 amStephen Lathrop says:
I’m not a fan of Kelo, but I’m also no lawyer. I just think eminent domain should be used only for ongoing public necessity, and never to put private property directly back in (different) private hands.
However, I think those who prioritize the private property right must contend with several problems:
1. The Constitution doesn’t have a lot to say about it. The fact that some of the framers did have more to say in other forums at other times makes the omission in the Constitution itself look deliberate.
2. The framers had a real problem in addressing property rights, because many of them were denying every property right to some people they thought of as…property. In a fix like that, it is unsurprising they did not go into the issue at length.
3. If private property is to be “The Guardian of Every Other Right,” what happens when it is unequally distributed, and some people have little or none? Do their other rights diminish accordingly? That would be in direct conflict with the notion of political liberty on the basis of equality, which the founders clearly did intend.
May 17, 2010, 12:56 amgrendel_loki says:
Consternation.
I’ve been racking up a lot of debt over the past few years, so I didn’t pull out a loan for Barbri or PMBR. Self studied the whole thing. Or, actually, I did go to the library and checked out every book that had sample MBE questions… daily. I think I only ran into the Takings Clause once or twice the whole time. Imagine my surprise in February when I ran into it during the CA essay examination.
I attribute my passing to the fact I visit this site daily and learn so much from it. Thanks guys!
May 17, 2010, 12:56 amMark F. says:
This discussion misses the point. The Constitutional limitations on “takings” only apply to the Federal government despite attempts to use the 14th Amendment to somehow apply the Bill of Rights to the states (see the work of R. Berger). Obviously Congress could have written an amendment that said simply “The Bill of Rights applies to the states” (James Madison proposed something like this and it was rejected), but they did not do this.
As much as I’d like to agree with Ilya on this (I’m a libertarian), I can’t.
May 17, 2010, 1:34 amDavid M. Nieporent says:
Raoul Berger’s writing on the 14th has been widely debunked. (Cue Aldridge to misrepresent Bingham and get us all to drink.)
May 17, 2010, 1:40 amCornellian says:
Because Justice Stevens barred courts from attempting to “second guess” the quality of a plan, as a practical matter, municipalities could easily prepare a plan that in reality benefited private interests. There is yet another problem with the Stevens opinion. The very purpose of the Bill of Rights is to safeguard individuals from abuses of governmental power. Broad deference to the officials it is intended to restrain is inconsistent with this purpose.
To those of you out there complaining that the courts should defer to the elected branches, could we get an admission that Ely’s reasoning applies to the entire Bill of Rights, including the 14th Amendment, and not just to property rights in the 5th Amendment and guns in the 2d Amendment?
May 17, 2010, 1:42 amMark N. says:
A question for Ilya, or anyone else who might know of names: who are some plausible Supreme Court appointees who’d count as “relatively pro-property rights liberals”? I assume there are some, but it’d be interesting to know if there are specific examples; if you were to give Obama 3 or 4 names to consider, who would they be?
From the list in Ilya’s linked old blog post, I suspect Ralph Nader and Maxine Waters are both: 1. unlikely Supreme Court appointees; and 2. not likely to make property-rights activists happy overall, even if they opposed Kelo. Maybe Bill Clinton? But he’s a bit old for a Supreme Court appointee, and seems like an unlikely choice regardless. Howard Dean maybe, but only if the long string of only appointing lawyers were broken. Perhaps a generally liberal law-prof who wrote a critical article about Kelo would be the best bet?
May 17, 2010, 1:45 amCavan says:
The remedy for Kelo is not the 5th amendment, it’s the 28th.
It’s not Justice Stevens’ fault what the Constitution says (rather what it doesn’t say). The Constitution places only two restrictions on takings… ‘public use’ and ‘just compensation.’ If the public wants to ‘use’ the property by transferring it, c’est la vie: transferring is as basic a property right as possession. The authority of Justice Steven’s opinion does not stem from its wisdom, but from the fact he is a Justice of the Supreme Court. Because there is no textual restriction how or how quickly the public must use that property, that is the highest authority we have.
May 17, 2010, 2:15 amPerseus says:
In which penumbra formed by the Constitution’s various emanations may that insipid principle be found? (And btw, markets don’t fail. Governments do.)
May 17, 2010, 3:27 amGuy says:
The rule for whether to apply strict scrutiny or rational basis is a prudential rule of deference, in spite of the attempts of some to characterize it as a purely constitutional rule. Nothing in the Constitution says that statutes passed by Congress or a state legislature need to be given a presumption of Constitutionality, so it’s only natural that when the Court created the rule for rational basis, the Court could also point out those situations in which the logical basis for the existence of that test did not apply.
May 17, 2010, 3:33 amPerseus says:
Nothing new about that. As Madison averred, “the most common and durable source of factions has been the various and unequal distribution of property.” Indeed, Progressive historians attacked the Constitution for being a reactionary document designed to advance the interests of the propertied at the expense of the propertyless, which spurred the Left to demote property rights, making them (as Prof. Somin noted) “the ‘poor relation’ of the Constitution.”
May 17, 2010, 4:17 amPhilC says:
Of course, the public wants to use the property by improving it. That’s a basic use of property, as is profiting from it, transferring it, bartering with it, or giving it away.
Quite right.
May 17, 2010, 6:43 amStephen Lathrop says:
You might well have quoted the part where Madison refers to “…an equal division of property” as an example of political vice, numbering it with paper money and abolition of debt among possible “improper or wicked project(s)” likely to be stirred by factions. But alas, Federalist 10 could well appear as a principle illustration in some extensive treatise on “Homer Nods.” Because Madison’s proposed and only solution, an extensive republic, has now been achieved, and arguably maximized, without securely eliminating the danger as Madison perceived it.
Moreover, you can’t read Federalist 10 without noticing that Madison himself recognized the underlying conflict between property and liberty, and thus the inherent incompleteness of his proposed solution. Here is the problem as Madison understood it, and I doubt it will ever be understood better:
This dilemma, property vs. liberty, which Madison so brilliantly encapsulates, can never be put to rest except by the abolition of liberty, as Madison warned. Can conservatives and libertarians who wish it otherwise argue their way past Madison and his explicit subordination of property rights to political liberty?
What might they say? That Madison expected a better result for property from the republic, and if he had known how things would turn out, he would have said, “Abolish liberty?”
May 17, 2010, 7:35 amMark Field says:
It’s pretty hard to say that something accepted by a majority of the SCOTUS is “unreasonable”. I’m not saying it never happens — it does — but that’s not the case with Carolene Products.
No, because that ignores Ely’s reasoning. His rationale for judicial intervention is that the courts need to supervise the democratic process itself. When they’re confident that the majority is not abusing the democratic process, then its decision should stand. Only in those cases where the process itself is corrupted should the courts intervene.
Following up on Guy’s point, where in the Constitution is any intepretive principle found? Where is Chevron deference (or any other kind)? For that matter, where is judicial review?
May 17, 2010, 10:27 amStephen Lathrop says:
I can understand the tyranny of the majority. I get it that you can’t vote on everything. But how can a majority “abuse the democratic process?” I thought the democratic process was about doing what majorities wanted to do.
May 17, 2010, 12:22 pmMark Field says:
There are short term and long term aspects of majority rule. Some examples:
1. A majority passes a law which, to repeal, requires a 2/3 vote.
2. A majority passes a law disenfranchising a minority.
In both those cases the current majority is attempting to freeze itself in place, contrary to the long run purpose of majority rule.
May 17, 2010, 1:10 pmPerseus says:
D’oh! I guess your copy of The Federalist Papers ends with number 10, not to mention Madison’s other suggestions such as (real) property requirements for suffrage that modern progressives find so unpalatable.
Madison’s subordinates property rights to liberty because property rights are but one (lower) manifestation of men’s “different and unequal faculties,” the protection of which is the first object of modern government (as distinct from ancient governments, whose object was the cultivation of men’s faculties). Progressives cannot abide the perceived unfairness of these inequalities, and so have sought to level them or their effects, and they thought that empowering popular majorities (and demoting the rights of property and contract) would accomplish that end. The dilemma, then, is more about the implications of making the protection those unequal faculties the first object of government.
May 17, 2010, 6:06 pmStephen Lathrop says:
Perseus, your argument is not clear to me, but let me see if I can make it clear as I understand it, and then you can tell me where I go wrong.
1. People are born with different faculties.
2. Society should be so organized that those with better faculties enjoy better outcomes than those with lesser faculties.
3. Those with better faculties should be at liberty to join together to assure the organization posited by (2).
4. Those with lesser faculties should be prevented from joining together to assure any contrary outcome.
Does that sum it up?
May 18, 2010, 7:39 amIs the Judicial Takings Issue Headed Back to the Supreme Court? | theConstitutional.org says:
[...] If the Supreme Court takes this case, it may be less willing to grant broad discretion to state courts than it was in Stop the Beach, because the relevant state law doctrine (the definition of “navigable”) is derived from federal law. In Stop the Beach Renewal, Justice John Paul Stevens recused himself, thereby producing an equally divided 4–4 court on the judicial takings issue. Stevens has since been replaced by Elena Kagan, who has very little record on property rights. I analyzed her brief confirmation hearing testimony on the subject here. If the Supreme Court returns to the “judicial takings” issue, it would be her first major test in this field. Property rights advocates can at least take comfort in the fact that Kagan’s views can hardly be worse from their point of view than those of the justice she replaced. [...]
September 17, 2010, 5:19 pm