Barack Obama and Constitutional Property Rights:

Columnist Steve Chapman quotes an interesting passage from Barack Obama's book The Audacity of Hope, where Obama praises constitutional property rights:

Our 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.... Our greatest asset has been our system of social organization, a system that for generations has encouraged constant innovation, individual initiative and the efficient allocation of resources.

I. Judicial Protection for Property Rights and Obama's Legal Philsophy.

This is a fairly strong statement. Obama doesn't merely say that the Constitution offers some small degree of protection for property rights. He writes that it "places the ownership of private property at the very heart of our system of liberty." That implies that property rights should get more protection than the distinctly second-class status they have been relegated to under the Supreme Court's current jurisprudence.

Stronger protection for constitutional property rights would also be consistent with Obama's more famous statement calling for the appointment of judges who have "[t]he empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." As David Beito and I discussed in this article, African-Americans, the poor, and the politically weak tend to be the biggest victims of government violations of property rights. Since World War II, hundreds of thousands of people - most of them poor minorities - have been forcibly displaced by "blight" and "economic development" condemnations.

II. What Will Obama Actually Do?

Will Barack Obama actually appoint judges who adhere to the notion that the protection of property rights is a at "the very heart" of the Constitution, and whose "empathy" for the minority poor leads them to view takings with a skeptical eye? I have my doubts. Although the backlash against Kelo v. City of New London has stimulated support for property rights in many liberal and left-wing quarters (see Part I of this article), the liberal legal establishment remains strongly opposed to any increase in judicial protection for property rights.

Obama has said that he wants to appoint justices similar to Stephen Breyer and David Souter. These justices - like nearly all the other prominent liberals in the federal judiciary - have consistently voted against property rights in almost every major case for the last 20 years (see this article for the details). To find politically liberal jurists more sympathetic to property rights, Obama would have to look beyond the federal legal establishment and reach out to appoint judges from the state courts (where some liberal Democratic jurists have ruled in favor of stronger property rights protection under their state constitutions) or to activist groups such as the NAACP Legal Defense Fund, which filed a strong pro-property rights amicus brief in Kelo emphasizing the ways in which eminent domain abuse targets the minority poor. On balance, I doubt that Obama values property rights enough to go so far afield in choosing his judicial nominees.

There is also a lot the new president can do to strengthen protection for property rights through the political process. In this April op ed I noted several possibilities:

The [next] president can also help protect property rights through the legislative process. In 2005, the House of Representatives passed the Property Rights Protection Act, which would have denied federal economic-development funds to local governments that engage in Kelo-style takings. Unfortunately, the PRPA died in the Senate, and is now stuck in committee in the House. Strong presidential support could well force its passage. The next president should also work to broaden its scope, which in its current form would only apply to a very narrow range of federal grants. Denial of federal funds would create a strong incentive for states and localities to respect property rights.

Finally, the next president could strengthen President Bush's June 2006 executive order on eminent domain, which forbade federal agencies from initiating condemnations intended to "merely . . . advance[e] the economic interest of private parties." Unfortunately, Bush's order did not actually prevent any economic-development takings because government officials can always argue that their goal is to benefit the general public. A new and stronger executive order would have limited impact. But it would send a valuable signal of presidential resolve to protect property rights.

Obama could also act to protect property rights in the field of "regulatory takings," where government actions often impose onerous burdens on property owners without compensation. For reasons co-blogger Jonathan Adler outlines in this excellent article, compensating property owners for regulatory restrictions on their rights can both strengthen property rights and improve the quality of environmental regulation.

If Obama appoints pro-property rights liberals to the federal judiciary or embraces pro-property rights policies, that will be a sign that he really meant what wrote about property rights and is not a typical big government left-winger. It would also allow him to compile a much better record on property rights issues than the Bush Administration did. If the paean to property rights in The Audacity of Hope turns out to be more than just hype, that would give us some change we can really believe in. I'm skeptical that Obama will actually do any of this. As he himself puts it, "hope is not blind optimism." But I'm not giving up hope completely. After all, in the same breath, Obama also said that "Hope is that thing inside of us that insists, despite all the evidence to the contrary, that there is something greater inside of us." Maybe Obama will yet find inside himself the audacity to strengthen protection for property rights.

Barack Obama and Constitutional Property Rights II - Obama's Apparent Silence about Kelo:

As I mentioned in my previous post on the subject, Barack Obama has expressed at least rhetorically strong support for constitutional property rights. On the other hand, it is striking that - as far as I know - Obama has never said anything about the Supreme Court's decision in Kelo v. City of New London, by far the best known and most widely criticized of the Court's recent property rights decisions. Obama's apparent silence is all the more notable in light of the fact that the decision was harshly criticized by numerous other liberal politicians and activists, including Bill Clinton, Ralph Nader, Maxine Waters, and Howard Dean (See Part I of this article for the relevant cites). Many African-American leaders were particularly critical, because as the NAACP emphasized in its excellent amicus brief in the case, "blight" and "economic development" takings often target the property of the minority poor.

If Obama has indeed been silent on Kelo, that may be an indication that his true level of support for constitutional property rights is actually quite weak. After all, if he's not willing to oppose an anti-property rights decision widely reviled by other liberals, it's doubtful that he would ever support property rights in other, more controversial contexts. Silence could even indicate that he actually agrees with the Court's decision but does not want to say so for fear of angering public opinion.

My searches of the Westlaw and Lexis databases, as well as Obama's campaign website, don't reveal any statements on Kelo one way or the other. However, it's possible that I have missed something in my research. If any of our readers have spotted an Obama statement on Kelo that I might have overlooked, please let me know.

Why Obama's Position on Kelo Matters - Even if he Doesn't Have One:

Some commenters on my post about Barack Obama's apparent silence about Kelo v. City of New London fail to understand why his position on the case matters. After all, they say, politicians don't have to take positions on every US Supreme Court case, do they? The problem with this reasoning is that Kelo wasn't just any case. It drew a broader political backlash (opposed by over 80% of the public) and a bigger legislative response (43 states and the federal government enacted reform legislation) than any other Supreme Court decision in decades, if not in the entire history of the Court. As I noted in the previous post, numerous politicians - including many of Obama's fellow liberal Democrats, and many African-American leaders - took positions on Kelo (mostly against it). Obama's general election opponent John McCain also came out against Kelo.

Thus, it is not unreasonable to expect Obama to have a position on Kelo. That is especially true when we remember that Obama is a former constitutional law professor and an expert on the history of race and the law. As he likely knows (or at least should know, given his academic specialty), "economic development" takings of the kind Kelo upheld have often been used against the minority poor, a point emphasized by the NAACP among others.

Doctrinally, it is true, Kelo was consistent with previous Supreme Court public use precedents, such as Berman v. Parker and Hawaii Housing Authority. Far from trying to hide this fact, as a few of my critics allege, I have noted it in several articles (e.g. here and here). However, those earlier precedents themselves represented major departures from constitutional text and history, and were particularly extreme manifestations of the post-New Deal tendency to defer to the government on virtually all "economic" matters (a point well summarized in this article on Kelo by Vanderbilt lawprof Jame Ely, a leading historian of constitutional property rights). Kelo represented a major opportunity to rethink these aberrational precedents, at least to the extent of cutting back on their more sweeping assertions of virtually unlimited deference to the government. Essentially, Berman, Midkiff, and Kelo interpreted the term "public use" in the Fifth Amendment to mean "any potential benefit to the public, even if there is no proof that the benefit will actually occur." Eleven state supreme courts have banned economic development condemnations under state constitutional public use provisions worded very similarly to the federal one. Thus, unless you are a believer in very stringent adherence to precedent in constitutional cases regardless of the quality of that precedent's reasoning or the practical impact of keeping it, Kelo cannot be regarded as a typical case whose outcome was predetermined by indisputable past decisions.

Obama's apparent silence on Kelo is therefore telling. If he simply didn't consider the case important enough to take a position on, that suggests that he assigns a very low priority to property rights issues generally. If so, he is unlikely to either appoint pro-property rights judges or support property rights in the political process, as other of his statements suggest he might be inclined to do. If he kept silent because actually agrees with Kelo but didn't want to say so out of fear of offending public opinion, that is even worse news for property rights. Because Kelo licenses virtually any condemnation undertaken for almost any reason, it's logically very hard to endorse this decision without also opposing constitutional property rights across the board. And in fact four of the five justices who voted with the Kelo majority have consistently opposed property rights in virtually every relevant case heard by the Court over the last twenty years (a point I discuss in this article).

I'm not saying that Kelo and related property rights issues should be one Obama's highest priorities. However, if he has indeed maintained complete silence about Kelo, it does have important implications for his broader position on property rights.

UPDATE: To make things absolutely clear, I am not claiming that Obama should be expected to have a position on Kelo because he is black, and economic development takings disproportionately hurt minorities. I am claiming that his being a former professor of constitutional law specializing in racial issues is one of several reasons one could legitimately expect him to have expressed a view on the case. That would be no less true if he were a white lawprof specializing in the same subjects.