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Takings and Privatization:

For many years, people who generally lean pro-free-market and small-government have argued that when the government does things, it should usually do them through private entities. Don't have the government run utilities; have them be run by private companies. Don't fund solely government-run schools; even given a public commitment to government-funded education, it's better to have much (in the view of some, all) of that education be conducted by private schools. If you're going to pay for housing for the poor, do it through vouchers, not through government-run housing projects.

Moreover, you generally shouldn't burden the private organizations with common-carrier-like "you must serve everyone" requirements, at least unless they're monopolies. Better leave landlords and educators, for instance, free (or mostly free) to decide whom to let in, and on balance their economic self-interest will generally yield optimal results. (I set aside here the debates about bans on discrimination based on race, religion, sex, and so on; the common carrier model would ban all discrimination, or all discrimination found to be "unreasonable" by some government decisionmaker, and not just discrimination based on certain proscribed categories.)

My sense is that this is indeed generally a very good policy: Once you decide that the government should be funding or assisting some services, you should nonetheless prefer that they be privately provided (better yet, competitively provided), of course with some exceptions. There are costs to this approach, but they are less than the costs of inefficient government operations. "The public end may be as well or better served through an agency of private enterprise than through a department of government." Berman v. Parker, 348 U.S. 26, 33-34 (1954).

The funny thing is that, in Kelo v. City of New London, it is the (mostly liberal) majority's test that would give the government flexibility to serve public goals by taking property and selling it to private parties, when the government thinks the private parties will be better positioned to provide the public benefit. And it is the conservative dissenters' test that would give the government a strong incentive to own and operate various enterprises itself, or insist that whoever owns and operates them labor under the burdens of being a "common carrier."

Under the dissenters' view, if the City of New London wants to take property to run a shopping mall, which would presumably provide more jobs and government revenue, it's free to do so. But if it wants to take property and resell it to a private shopping mall owner, it may not. True, the latter solution isn't the pure free market: The mall owner would be getting a government benefit in the form of property taken from the original owners (albeit with compensation), just as school choice programs get a government benefit in the form of money taken from taxpayers. Still, it seems better than the City running retail stores — yet the dissenters' approach would give the City an incentive to do that, rather than lining up more efficient private businesses to do it.

Now there are certainly other arguments in the dissents' favor. Perhaps Justice Thomas is right that the original meaning of the "public use" requirement was to mandate that the property be owned by the public or by a common carrier, and that we should therefore insist on this meaning. Or perhaps Justice O'Connor is right that without some such requirement, the government would have too much power to merely take property from one person to another, with no real public benefit. Or one could argue that as between (1) no takings, (2) takings of property to be owned and operated by the government, and (3) takings of property to be owned and operated by private parties, but for a public benefit, #3 is indeed more efficient than #2, but #1 is most efficient of all — and that we therefore should allow only #2, precisely because its inefficiencies will provide a natural deterrence to takings, and push the government more often into the best position, #1. I'm certainly sympathetic to finding some constitutional limit to government power here.

Nonetheless, if we're evaluating the practical benefits of either approach, we might want to be skeptical of an approach that favors government ownership or operation of publicly useful enterprises over private (albeit government-assisted) ownership or operation.

UPDATE: I should stress, by the way, that my point isn't just that a "government ownership and operation is OK, private ownership and operation is not" rule creates perverse incentives. The question is also whether a rule that disfavors privatized but government-assisted enterprises compared to purely government-run enterprises makes sense, given that we generally think privatized enterprises are better.

Keith Wright (mail):
I worry it could end up a bit like the commerce clause, where you can shoehorn any sort of action you want into it. What does a goverment ever do that it doesn't think is good for the public at large? I don't think the court was wrong, though, just a shame that there isn't a good clean line we can use to limit the use of this sort of power.
6.23.2005 2:26pm
Lawroark (mail) (www):
I think that the libertarian right likes the position of the Thomas dissent because we don't believe that governments will start running things like shopping malls. Right now, private takings occur and then are over, usually before the public even understands what is going on. Most people just see a new shopping mall without knowing how it got there. If the government were to run shopping malls, however, it would be an ongoing political issue. People would care. And most people would probably be against it. We don't like when the government runs things because generally the government does a bad job. Thus, as a libertarian, I believe that the Thomas opinion would not be likely to actually lead to greater government ownership of enterprises.

Those in favor of the private takings in cases like Kelo usually try to argue in capitalistic terms, even though what they are doing isn't capatalistic at all. They talk about the importance of private industry to their local economies. I think this tends to work because Americans are generally capitalists and respond to capitalist arguments. If suddenly the law required that takings be used only by government entities, the takers couldn't use capitalist language, and I think their actions would be less popular.
6.23.2005 2:32pm
Chris Lansdown (mail) (www):
Is the government really free to own any business it chooses and to run it for profit? I would have thought that the government was in some manner prohibited from running shopping malls under some general principle that ran along the lines of "We're not communist".

Could city governments, for example, exercise public domain and take, say, a baseball team and run it for profit in lieu of (or in addition to) tax increases? Could they exercise eminent domain and take over all of the barber shops and then set high prices to raise money for the city?

Surely the alternative in Kelso is that no one can build a shopping mall if the owners of the property don't want to sell it for that, not that the city has to get into the shopping mall business if it wants a shopping mall there?
6.23.2005 2:35pm
Chris Lansdown (mail) (www):
(note: that comment is not a normative comment, but an interrogative one.)
6.23.2005 2:35pm
billb:
Do you really think that the government will start running shopping malls or factories or whatever if they can't take property to give to private entity that wants to do so?

Do you really think that New London would have opened its own pharmaceuticals plant if they hadn't been able to take the property to give to Pfizer to build its own?
6.23.2005 2:37pm
theogt:
It's the taking of the property that is the problem, not who is going administer the property after it is taken. Practically speaking, the gov't is not going to take property to open a shopping mall and run it itself. So, if you prevent the taking for purposes of giving it to private operators, then there will be no taking at all.
6.23.2005 2:42pm
MIchael Yuri (mail):
The problem with this argument is that it assumes that the process goes like this: (A) Government decides to provide some benefit to the public, then (B) government decides that a private business is best situated to provide this benefit.

A more cynical view is that what really happens is: (B) Private business lobbies government for favors, and then (A) government justifies these favors as a benefit to the public.

If you think the first description accurately describes most of these eminent domain transfers, then you're right. The dissenters' view would lead to a lot of inefficient provisioning of services by government rather than private business.

But if you think the cynical view is a more accurate description of what is usually going on, then the dissenters' view would simply stop governments from considering providing these "public benefits" in the first place.
6.23.2005 2:44pm
Thom (mail):
I have to disagree and argue that (2) is the most efficient rule.

Rule (1) is too inefficient because of the holdout problem. If the government wants to build a road, it would have to buy up many plots of adjacent land. Property owners would catch on to what is happening and refuse to sell, in order to drive up the price (since they know the government HAS to have their land for the road to be built -- they can demand a very high price: much higher than the price at which they subjectively value the land). So the existance of situations that trigger this holdout problem are (in my opinion) the justification for rule (2).

Rule (3) is bad for a couple of reasons. First, it's not a 'free market' situation if the 'private' entity can get its land (probably the biggest component of its fixed cost function) without paying for it. A truly free market will distribute land to those who will use it most efficiently, whereas rule (3) will distribute it arbitrarily according to the whims of government officials (or according to who can lobby these officials most effectively). Indeed, one of the strongest arguments for the free market is its ability to produce efficient outcomes.

Another argument against (3) is that it adds uncertainty to property rights. Private entitities now face a higher probability that their land will be seized, and this is another fixed cost.

I could probably think of more arguments, but this is off the top of my head.
6.23.2005 2:48pm
Thom (mail):
I have to disagree and argue that (2) is the most efficient rule.

Rule (1) is too inefficient because of the holdout problem. If the government wants to build a road, it would have to buy up many plots of adjacent land. Property owners would catch on to what is happening and refuse to sell, in order to drive up the price (since they know the government HAS to have their land for the road to be built -- they can demand a very high price: much higher than the price at which they subjectively value the land). So the existance of situations that trigger this holdout problem are (in my opinion) the justification for rule (2).

Rule (3) is bad for a couple of reasons. First, it's not a 'free market' situation if the 'private' entity can get its land (probably the biggest component of its fixed cost function) without paying for it. A truly free market will distribute land to those who will use it most efficiently, whereas rule (3) will distribute it arbitrarily according to the whims of government officials (or according to who can lobby these officials most effectively). Indeed, one of the strongest arguments for the free market is its ability to produce efficient outcomes.

Another argument against (3) is that it adds uncertainty to property rights. Private entitities now face a higher probability that their land will be seized, and this is another fixed cost.

I could probably think of more arguments, but this is off the top of my head.
6.23.2005 2:48pm
Boonie (mail):
I think this is decision is a tragedy...I accept all of Eugene's points, except he doesn't deal with the true heart of the matter: that is, regardless of if the gov is taking land for itself or for a private enterprise, the PURPOSE of taking the property should be for the public well-fare. Taking property from a slumlord through due process for resale to private enterprise has been upheld, it can be supported on environmental, health, and safety grounds. Taking property for environmental protection has been upheld. Taking property to enhance monopolistic public works (roads, telecommunications, even "private" rails) has been upheld. But taking property to benefit a private capitalistic endeavor crosses the line. Forgot the "jobs" arguement, it is a red herring. This is government being used (influenced?) to take from one American and give to another American simply for economic purposes. What would have been the reaction to this decision if the private enterprise in this matter had been a coal mining company or oil company? Afterall, we need energy to live! certainly more than we need a Baby Gap or a Macaroni Grill.
6.23.2005 2:53pm
Nick (www):
Thats assuming the taking is justified at all. The issue here is that Kelo should have been acceptable to conservatives if the mall/office was publicly owned. The point is that the taking was not justified at all. A mall/office, no matter who runs it is not a sufficient public good to override a person's private property rights.

The reason why we have previously used the idea as "publicly owned" to prevent this sort of taking, is because generally we had very few ventures in government that met that criteria. However, with government as large as it is, and running so many things, that is no longer the deterent excuse that it once was.

As I said here, we have now turned this country in a place where you constantly have to justify that you are making better use of your land than someone else who might come along and want it. Time to buy a shotgun. I do believe my 2nd amendment rights trump your eminent domain rights.
6.23.2005 3:06pm
jallgor (mail):
I think most people's post get to the crux of the problem and Eugene's post misses it. The issue is not who gets to run the mall after the land was seized. The issue is whether the seizure was truly justified as a public good. If they wanted to build a road nobody would care whether the government or a private company was going to be in charge of building it. Jobs and tax revenues just shouldn't pass muster as a public use under the taking clause.
Think about this. A city wants to increase tax revenues so it decides to seize the homes and lands of the 200 poorest people int he city and give them to 200 high net worht individuals. Is that for a public good? It increases tax revenues and probably creates jobs and helps business in the area through increased local spending. Absurd I know but is it far off?
6.23.2005 3:22pm
Thief (mail) (www):
Prof. Volokh, I think you're making an invalid comparison here. You justify privatization/voucher systems from a purely economic efficiency standpoint, then do the same with today's decision.

Except private property, in my mind, is a moral consideration, not strictly an economic one. (Goes back to the whole "Thou Shalt Not Steal" thing...). I'm probably working myself into a corner, but the concept of eminent domain seemed to be a practical way to allow private property while still allowing government to get the property it needs without falling into the tragedy of the commons. The distinction made between public and private use was the linchpin of this compromise between the the moral imperative of property rights and the practical needs of government. And now the Supreme Court has gone and yanked it; it has said that even private uses can be considered public if governments say they are.
6.23.2005 3:23pm
Duncan Frissell (mail):
I think that the founders assumed (hoped) that "public purposes" would be limited and thus takings limited.

Thus Article I, Section 8:
The Congress shall have power to...exercise exclusive legislation in all cases whatsoever,...over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

If the powers were limited, these efficiency issues wouldn't come up.
6.23.2005 3:29pm
frankcross (mail):
The argument is not as bad as you make it sound. If government can take property for public schools, why not let it take property for a private school operating under a voucher system. And government does run retail outlets. Though I think Michael Yuri's response is a good answer.

But most people reacting to this decision are total drama queens. This is not a "tragedy" and people aren't going to have to justify the use of their land to the government. The decision may create the very isolated, occasional injustice. But democracy will prevent it from being seriously abused.
6.23.2005 3:34pm
Daniel Newby (mail) (www):
Surprisingly, the plain language of the Constitution forces me to completely support this decision:
... nor shall private property be taken for public use, without just compensation.
The fifth amendment clearly does not regulate the taking of private property, it regulates the compensation to be given when property is taken for use by the public. Likewise, the Connecticut constitution clearly regulates only takings for public use:
SEC. 11. The property of no person shall be taken for public use, without just compensation therefor.
This is no fine point. A blanket prohibition of all takings-not-for-public-use would wreak havoc on customs and duties, court-ordered payments, destruction of contraband, and so forth.

Do any state constitutions give special protection regarding takings for private use?
6.23.2005 3:49pm
John Powers (mail) (www):
Re frankcross post...

Yeah, sort of like killing a few people in the name syphillis research is a very isolated, occasional injustice. Surely democracy will prevent it from being seriously abused.

Look, this is democracy, and this is abuse. How does democracy stop this abuse?
6.23.2005 3:51pm
Jason R.:
I'm just amazed at how the word "use" morphed into "purpose."

I wonder how all those other economic development plans cited by Stevens have turned out.
6.23.2005 3:53pm
Adolph Trudeau (mail):
Businessman: We would like to put our corporate headquarters right here.
Politician: Sorry, but voters live there. I can't help you by giving them the boot.
Businessman: Here's a check to help you stay elected.
Politician: A corporate headquarters sure would look high-dollar. Let's make an community economic plan!

Politician thinking: No voters--no problem.
Businessman thinking: Next year I'll get a tax abatement to keep me from abandoning the town.
6.23.2005 4:08pm
Ashish Hanwadikar (mail) (www):
6.23.2005 4:28pm
David M. Brown (mail) (www):

Nonetheless, if we're evaluating the practical benefits of either approach, we might want to be skeptical of an approach that favors government ownership or operation of publicly useful enterprises over private (albeit government-assisted) ownership or operation.


Huh? How about an approach that simply leaves private property in the hands of its owners, until such time as they sell?
6.23.2005 4:37pm
Tom J (mail):
Daniel Newby wrote ..

The fifth amendment clearly does not regulate the taking of private property, it regulates the compensation to be given when property is taken for use by the public.


I don't think that is correct; this clause limits taking of private property to only property taken for public use, AND it requires just compensation for the taken property.

See Justice Thomas' dissent for a more complete discussion.

Using your interpretation, the government is free to take property for non-public use and not compensate at all. Is that really consistent with the framers ideas and the rest of the Constitution?
6.23.2005 4:44pm
Baronger (mail) (www):
So when do we see the first real estate developer sue a city council that is unwilling to condemn property for them? Would they just have to prove that the developer would increase the tax base, over what the current residents pay? This sounds like a cool way to get the piece of property you want when the owner doesn't want to sell.
6.23.2005 4:48pm
jallgor (mail):
I already have my eye on a few places in NYC that I am sure I can put to better use than there current owners. Now I just need to hire a lobbyist.
6.23.2005 5:17pm
Richard Bellamy (mail):
"Could city governments, for example, exercise public domain and take, say, a baseball team and run it for profit in lieu of (or in addition to) tax increases? Could they exercise eminent domain and take over all of the barber shops and then set high prices to raise money for the city? "

I believe that the Toledo Mudhens (minor league baseball team) are publically owned and run for profit by whatever county Toledo is in.
6.23.2005 5:37pm
SW (mail):
Even if the government gives the property to a private entity for use, it necessarily gives the government increased control over that enterprise. Leviathan giveth, and Leviathan taketh away...unless you comply with these regulations, pay these taxes, wine and dine these congressment...
6.23.2005 5:45pm
Gareth (mail):
I can't see why the O'Connor and Thomas opinions are any better, from a libertarian point of view, than the Stevens and Kennedy opinions. Both Thomas and O'Connor think a compensated taking is unproblematic as long as the state takes title to the property. But if the state takes title, then the state can always transfer it later to a private entity. Or, if it cannot, what happens to privatization? Are we going to say that no future state can privatize because the property first came into state hands through eminent domain?

Stevens and Kennedy both left it open to plaintiffs to challenge the City's determination that the taking has a public benefit (although, admittedly, this is going to be hard). Thomas, in particular, focuses on the basically irrelevant question of whether the city or some private entity takes title.
6.23.2005 6:05pm
SteveA (mail):
Wait, so the government can take any land it like from any citizen in the name of public good, the citizen having no say in the fact that its taken or what the just compensation is, and we consider this fair use of government power?

I understand the need for procuring land for uses such as roads and schools, but to do so in such an unfair and governemnt-first method sounds very very unconstitutional.
6.23.2005 6:13pm
Gil (mail) (www):
I think a sense of perspective is needed here.

I think the government's ability to sieze property and give it to private drug companies is so far down the list of reasons why the government itself doesn't get into the drug business as to be virtually irrelevant.

And, if the government did want to provide a product or service, I don't think its ability to transfer property to private parties, too, would deter it at all.

The issue here is whether "public use" limits the takings power in any meaningful way. Apparently, a majority of the Supreme Court thinks it doesn't.
6.23.2005 6:29pm
Stephen M (Ethesis) (mail) (www):
In looking at Kelo v. City of New London and many comments, many people forget that "natural" humans are territorial. The constitutional limit on the presidency to natural born citizens recognized that in a less fluid world, people develop and keep strong territorial loyalties -- it is a natural human drive.

In that regards, government takings are seen as an evil as there is no compensation for the personal invasion of space and territory.

Most moderns have lost that feeling, that loyalty to a patch of ground and an entity smaller than a nation-state. Who, in this time, would feel that loyalty to their state would overrule loyalty to their nation, especially in an unjust cause (think Robert E. Lee).

No one thinks that the gov. of California would side with his native land over the U.S. But consider the words of the song "breaths there a man with heart so dead, who never to himself has said, this is my land, my native land, this is my native land!" In our age, that would be most of us.

People who have moved a great deal, who do not have generational contacts and roots with the land are, indeed, a different kind of human. I'm one myself, and do not feel as strongly about the land. When I was burglarized, I was miffed, but not violated or outraged. Filled out a claim, noted my deductable, went on with life. People connected with the land have much, much stronger reactions.

With that change I think we are finding a change in how the law regards taking land away from people, from a last resort that does violence to the social bond to a mere economic reality for the common good without any extra- (hmm, what is a good term for that, a sort of extra-contractual damages sort of thing, only the emotional and personal cost of transfer) costs or harms.

In that universe, I think Kelo v. City of New London may be rightly decided. Public use is any use the eventually improves optimality, which is the public good, without regard for the other costs, since they don't exist, or the need to avoid imposing those costs.
6.23.2005 6:47pm
Tom952 (mail):
The court demonstrates a lamentable lack of restraint here. The opinion weakens the 5th amendment restriction on government taking for no stronger reason than it is now found to be convenient for local government to do so. Just because there is a real problem that needs to be addressed should not be grounds for the court to step in and weaken the bill of rights. Rather than behaving as the omnipotent ruler of the U.S., we would be better served if the court would remember that it can show restraint and say, "there is no constitutional conflict here, but we think congress should consider this issue."
6.23.2005 6:55pm
Dan Hamilton (mail):
San Francisco - All those small OLD UNSAFE houses. I am going to build BIG NEW SAFE Condos that will pay a lot of taxes. Why, I will increase the taxes the city gets from this area 10 fold. All you need to do is turn the land over to me. I will of course pay for the land, JUST COMPENSATION. The same amount the City would pay if they were putting a road through. Not half of what I would have to pay if the city wasn't taking the land. I am sure we can come to some agreement on how this can be done. WINK WINK NOD NOD.

Yesterday, this wasn't possible. Today, it would be legal. The corruption that this will cause is mind blowing. No way to fight it. The Supremes have said it is legal. On what basis could you fight it in a court??? This case has just opened the flood gates. Before, at least, the land was going to the PUBLIC. People could accept that. BUT NOW!! The people will have no recourse. In the above case in San Francisco the people who lost their home wouldn't even be able to afford a house anywhere near where their old home was. Yea, sure they can work to defeat the City leaders who did this (and got rich enough not to care if they were defeated).

People will be left mad as hell. With no recourse to the courts. Nothing that they can do to stop their homes being taken. And they can't even say "Well the road had to go through. The school had to be built, etc". Just "They stold MY LAND to make themselves and that &^%^$#HOLE rich." Blood will flow because of this case. I only hope that it's the blood of those responsible and not just the police and the Landowner.

Nails in the lid.
1. First Amendment - McCain-Feingold
2. This takings case.

It will not take to many more of these to really piss people off.

People will FEEL this one. McCain-Feingold hasn't effected people yet. NOBODY in their right mind would have decided this case in this way. As bad as McCain-Feingold was this is much worse.
6.23.2005 7:12pm
eddie (mail):
Eugene's insightful post highlights the fact that the Constitution is by no means an unreserved champion of liberty. In an originalist or textual interpretation such as Justice Thomas', the Takings Clause allows (justly compensated) transfer to state-owned enterprise; in the majority's interpretation, it allows (justly compensated) transfer to private enterprise for provision of public goods. Free-market libertarians ought to prefer the latter, of course... but then the elephant in the room almost slips past our gaze.

The correct answer, of course, is no takings, regardless of whether the purported public good to come from what was taken will be provided by state agencies or by private enterprises competing in the market.

The Constitution allows for takings (subject to the requirements of Public Use, Just Compensation, and Enumerated Powers) because the founders believed that there must be cases when in order to provide a clear public benefit you sometimes just have to force somebody to sell. The holdout problem, as Thom points out. An enlightened view of markets and economics, however, can show that there is no holdout problem. Don Boudreaux makes that point in a Wall Street Journal online debate about this very case.


[I]n reality, because there is almost always more than one way to build a road or to site a large development, there usually isn't any one property owner who can hold the project hostage. This is one reason why private developers commonly succeed in assembling large parcels without using eminent domain.

Moreover, ingenious strategies exist to avoid the hold-up problem. For example, a buyer can negotiate sales contracts contingent upon the buyer acquiring all necessary parcels of land. With such contracts, no one landowner is ever in a position to hold-out strategically for the full value of the project.


I believe that Justice Thomas' interpretation is in keeping with the letter and spirit of the Constitution, even though it suggests that property taken for public use must be owned by the public. But I also believe that libertarians should argue for no takings at all; if the Constitution doesn't bar Eminent Domain, then the legislatures and executives can simply refrain from exercising it.

Directly on Eugene's point: the Kelo dissent would have made takings more difficult without raising any impediments to privatization of government operations that subsist largely on tax revenues rather than property seizure. As such it would have been a much better outcome than what we got.
6.23.2005 7:28pm
ReaderX:
Whatever the merits of the libertarian or laissez-faire economic position, or the liberal or the socialist positions or any other position, I would hope that the courts decide constitutional rights based on what the people and the states delegated and reserved, and not on what, on ideological or theoretical grounds, the judges believe to be good for us. Like Justice Holmes, I do not believe it the business of courts, or their counsel, to write economic theories into the constitution.
6.23.2005 8:56pm
Daniel Newby (mail) (www):
Tom J objected to my literalist interpretation of the takings clause of the fifth amendment, saying "I don't think that is correct; this clause limits taking of private property to only property taken for public use, AND it requires just compensation for the taken property."

If that were the case, the clause in question would read
... nor shall private property be taken except for public use and with just compensation.
Tom J also wrote "Using your interpretation, the government is free to take property for non-public use and not compensate at all. Is that really consistent with the framers ideas and the rest of the Constitution?"

Yes. Another clause in the fifth amendment reads "No person shall ... be deprived of ... property ... without due process of law". As long as you get due process, anything can be taken. Governments routinely use this power to transfer property to other people (child support payments, car repossesions), destroy it (disposal of contraband), and even convert it to public use for punitive purposes (seizure of the proceeds of a suspected illegal drug sale). Note that such non-public takings are fraught will perils and frequently abused.
6.23.2005 9:18pm
James Kolbert (mail):
Much of the blogging on Kelo strikes me as terribly court-centered. The Supreme Court, on the other hand, appears to have taken seriously the idea of a Constitution outside of the Courts (see, e.g., James E. Fleming's scholarship). Instead of viewing Raich and Kelo through the lens of a court-lover and decrying the Court's deference to legislatures as an institution, one could view it through the lens of a legislature-lover and applaud the Court for respecting its co-equal branch, the Legislature. The Court here perhaps is presuming that legislators, even on the local level, will bear in mind their obligation to act constitutionally and take action only if it is warranted. In those cases where legislators overstep their bounds, well, judicial review is always available to strike down those overzealous imprecations, but there is no reason to constitutionalize overbroad doctrine when we can take things one case at a time ("judicial minimalism") and save our counter-majoritarian powers for those cases where it counts (avoiding "self-inflicted wounds"). In that light, I suppose, Kelo is just a case of ordrinary rational-basis review (Williams Lee Optical) and Raich is simply a federal preemption case. The fact that Stevens was in the majority is rather irrelevant on this view, because Stevens "won" in cases where black-letter law was affirmed and conservative activism was not furthered, which is not a gain for liberal activists, especially given how old Stevens and O'Connor are. Unless you think both of them can make it until Hillary is elected President, these decisions could be viewed as mere placeholders for the impending JohnRobertization of constitutional law.

As for the Court refusing certiorari on Takings Cases, Rehnquist GAVE TAKINGS LAWYERS AN INSTRUCTION MANUAL FOR HOW TO GET CERT IN FUTURE TAKINGS CASES IN HIS CONCURRENCE IN SAN REMO HOTEL.

I REPEAT: REHNQUIST GAVE TAKINGS LAWYERS A HOW-TO-MANUAL OF HOW TO GET TO THE SUPREME COURT WITH A TAKINGS CASE FROM HERE ON IN WITH HIS CONCURRENCE IN SAN REMO HOTEL.
6.23.2005 9:29pm
Gregory Tetrault:
The flaw in your argument is that most local governments have limits regarding commercial activities. Local governments typically cannot build and run stores or malls or condominiums or manufacturing plants. Thus, there is a low risk of option 2 in the type of eminent domain situation seen in New London.
6.23.2005 10:01pm
AK:
Who cares why the government is taking property? The harm is not what is done with condemned land; the harm is that it was condemned in the first place. I'm not going to feel any better knowing that land was taken for a road than I would if it was taken for a Wal-Mart.

And governments do indeed run businesses, like liquor stores. The opposite result in Kelo would have allowed Vermont to take land for a state liquor store, but would not have allowed New York to take the same land and give it to a private individual to open a liquor store. Can anyone explain why that would make sense?
6.24.2005 12:14am
Guest:
Somewhere on a reservation, a bunch of Native Americans are laughing that all the land "owners" thought the government couldn't take their stuff whenever it wanted to.
6.24.2005 12:36am
Alan Meese (mail):
Eugene's very interesting argument might be missing one consideration. That is, the dissent's approach only favors/encourages government ownership if, in fact, the government could run the shopping center efficiently and thus compete effectively with privately-run shopping centers. If, as seems more likely, the government enterprise would fail in the face of private competition, then it's not clear to me that the dissenting approach really does encourage government ownership of what will become a failed enterprise. That is to say, the "alternative" of government ownership might be illusory. Just a thought!
6.24.2005 12:53am