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Do Takers Avoid "High Subjective Value" Properties or Just Properties Owned by the Politically Powerful?

I agree with most of the points Guest-Blogger Nicole Garnett makes in her two posts and in her excellent Michigan Law Review article on which they are based. However, I think her analysis of Chicago's decision to avoid condemning Catholic churches in the 1950s does not prove that takers routinely avoid high subjective value properties such as homes and churches. As I explained in this earlier post analyzing her evidence, the Chicago story proves only that local governments will shy away from condemning property owned by politically powerful groups:

The Catholic Church is well-organized for political mobilization and lobbying and had extensive political connections in Chicago at the time, as Garnett notes. Moreover, as Garnett also points out, Catholics were a majority of Chicago voters at the time, and area Catholics had a very strong commitment to their local parish churches. The fact that a politically powerful church to which the majority of local voters belonged was able to resist condemnation politically does not mean that churches with less political clout will be equally successful. Similarly, the fact that Bill Gates' mansion or George W. Bush's ranch is unlikely to be condemned does not mean homeowners in general are not vulnerable to takings - particularly those who are poor or politically weak. Even the Catholic Church has sometimes been victimized by condemnation in areas where it is less politically influential than it was in 1950s Chicago. For example, numerous Catholic churches were condemned in the notorious 1981 Poletown case, which resulted in the forcible displacment of some 4000 people in order to build a new factory for GM....

Politically influential churches will usually be able to force the government to desist, but the politically weak are unlikely to be so fortunate.

Condemnation of churches and other houses of worship belonging to less influential religious groups are quite common, as shown by the examples cited in the Becket Fund for Religious Liberty amicus brief in the Kelo case. So too are condemnations of homes, another type of property that is often considered to have high subjective value. In the last Part of this forthcoming article, I cite data that, by conservative estimates, some 3.5-4 million people have been expelled from their homes since 1949, by federally funded "urban renewal" condemnations alone - a figure that does not include many state and local takings or pure "economic development" takings such as Poletown. Even if Nicole is right to suggest that "high subjective values may correlate with successful efforts to prevent takings," the correlation is weak enough to allow many such condemnations to go forward.

I am not entirely sure to what extent Nicole and I disagree about this. In her last post, she notes that "political actors are particularly responsive to cohesive, well-organized and narrowly-focused coalitions like those that characterized parish-preservation efforts" a circumstance that helps explain why the Chicago churches were so successful in resisting efforts to condemn them; as she puts it, the Chicago churches' success in avoiding condemnation was "unsurprising." Nicole also points out that "disorganized, politically powerless owners" are far less likely to prevail in the political process, and so may require stronger judicial protection than more powerful political actors such as the Catholic Church in Chicago. I agree with both of these points. Depending on how much emphasis she puts on them, it may turn out that there is no real disagreement between us at all. But no doubt she will set me straight if I have misinterpreted her position.

UPDATE: Nicole comments on this post here. Since she agrees that the ability of the Chicago churches to avoid condemnation is a story "more about political power than subjective value" and also notes that high subjective value does not prevent the condemnation of huge numbers of homes, churches and other similar properties, our remaining disagreements on these issues are too minor to take up space debating here. To my mind, the interesting thing about the attempted condemnation of the politically powerful Catholic churches is not that it failed, but why the normally savvy Daley machine thought they could get away with it in the first place.

Dan Hamilton:
Developers using eminent domain WANT "High Subjective Value" Properties. They cannot get them any other way.

They want their Condos/Offices/Mall on the beach, river or lake. Or they want their new business next to a busy road where other businesses were there first. That is the purpose of the Kelo decision. If the property DIDN'T have High Subjective Value there would be no need for Developers to use eminent domain.

The Owners can't fight it because of legal costs and the media and politicians saying that the Owners are standing in the way of progress, new jobs, or other BS. The Owner can't effectively fight back. Only if for some reason the Media were to be on the Owners side might it be possible to fight the taking but that still doesn't mean that the Owner will win. The Politicians have incentives to side with the Developer and after Kelo the Courts do to.

This is what is so wrong with Kelo. The Owners end up fighting not only the Developers but the Politicians and the Media with no help from the Courts. The Politicians have NO incentive at all to give the Owners a fair shake.
2.13.2007 5:53pm
Alex Bensky (mail):
There is another political factor in the Poletown case: the residents of the area were predominantly white and although I can't prove it, I don't doubt that removing another pocket of whites was, if not the main idea of the condemnation, certainly viewed by the city's establishment as an added bonus.

I don't think anyone will be astonished to learn that the Poletown plant never offered as many jobs as were promised.
2.13.2007 7:18pm
Ilya Somin:
There is another political factor in the Poletown case: the residents of the area were predominantly white and although I can't prove it, I don't doubt that removing another pocket of whites was, if not the main idea of the condemnation, certainly viewed by the city's establishment as an added bonus.

I haven't seen any proof of such a motive in my extensive review of the literature on this case. However, it is true that some Detroit blacks were unsympathetic to the predominantly white Poletown residents in part because numerous blacks in the city had previously been displaced by urban renewal takings in the 1960s and 70s. They felt that whites should not be any more protected against condemnation than they had been themselves.
2.13.2007 7:21pm
Allan:
While everyone focuses on the "losers" in eminent domain cases, no-one focuses on the winners, who receive an increase in property value at the expense of the government.

Take a highway case, for example. If you have a business near the proposed highway and an offramp, the value of your property will likely sky-rocket. The only cost to you is a possible incremental increase in property tax, which would be entirely offset by the rise and value, and then some. Since the public entity will pay for the eminent domain procedings, you have no costs.

My proposal would be that the cost of eminent domain be borne by those property owners who benefit from the condemnation. Certainly, all property owners in the public entity that does the condemnation would benefit (in theory), which would result in the public entity paying some. Other property owners would benefit more, and they should pay more. If they object, they can agree to sell at the pre-improvement price and the next buyer can pay for the improvements.

We actually had a case recently in my city where a land transfer was involved. About 2% of the landowners would see an increase of their property values by 50% and the city would have benefited subjectively from the exchange (although the property it was giving up was worth much more than the property it was getting). It was sent to a referendum and failed. I think that, if the benefitting property owners had ponied up a few bucks to reflect the rise in their property values, it would likely have meant passage.
2.14.2007 10:37am
Justin (mail):
The irony would be that the political process ROUTINELY fails the politically powerless, and yet only when it comes to something that affects taking away something that the politically powerless have little of anyway (unencumbered property) do we see liberterian-conservatives argue that a constitutional protection must result.

On the other hand, in all sorts of arenas that actually affect the politically powerless or significant political minorities - the drug wars, prisoner's rights, access to equal education and government services, and in large parts of the country (re: political power), gay rights - courts which use constitutional principles to override decisions that have democratic, political solutions are routinely denounced as activist and dangerous.

Now, granted, this criticism applies generally, and less so to Professor Somin. However, the "taking the other side" of the argument here is even more patent and curious than the most obvious parrallel, sex crimes.
2.14.2007 10:48am
Dan Hamilton:
Justin, could it be that your "all sorts of arenas" have more to do with the actions or lack of actions that these "political minorities" have taken and NOT with any Constitutional protections they have?

Prisoner's "rights" you have got to be kidding. The Drug wars, You must mean the Gang wars over drugs and the gang bangers that your "political minorities" protect. The schools where getting good grades is "Acting White". ect. ect. ect.

Don't let your heart bleed for people who do it to themselves. You can TRY and change their ignorance but until they change THEIR CULTURE, NOTHING will change.

As for Gay "Rights" They have gotten everything they said they wantted. Then they changed their minds and DEMANDED APPROVAL of their lifestyle. Sorry, tolerance is all you get.

And as far as Political Power. They have the Democrat Plantation, don't they? I know it gives them no power but if they wanted power they would vote for somebody else.
2.14.2007 12:04pm
Elliot Reed:
Dan - is your self-parody intentional or unintentional? Usually I would assume intentional, but in this case it's hard to tell.
2.14.2007 1:49pm
HLSbertarian (mail):

The irony would be that the political process ROUTINELY fails the politically powerless, and yet only when it comes to something that affects taking away something that the politically powerless have little of anyway (unencumbered property) do we see liberterian-conservatives argue that a constitutional protection must result.


Some of us still see constitutional protections as actually residing in the Constitution, instead of as things that "must result" from our policy preferences.
2.14.2007 1:55pm
Elliot Reed:
Some of us still see constitutional protections as actually residing in the Constitution, instead of as things that "must result" from our policy preferences.
You've got to love this one. An appeal to the Constitution, rather than policy, to defend an expansionist reading of the public use requirement, which is not in the Constitution, and a restrictive reading of the equal protection requirement, which is.
2.14.2007 2:02pm
Justin (mail):
HLSLiberterianism, as Elliot Reed glibly but accurately stated, that's a truism that this situation explicitly challenges. The argument against Kelo is not found in the Constitution, unless you think the small statement about Property encompasses this. Yet, in that case, the due process and equal protection clauses would SURELY encompass many of the points that I have made - equal rights for gays, access to education, and even disperate impact can equally be read from the text itself. Furthermore, the Ninth Amendment is actually in the text of the Constitution itself, and cannot be "read out" for vagueness if the takings clause still remains.

Nor can the (often contradictory) resort to "originalism" work here - under an originalist theory of the Constitution, the takings clause only meant to keep the government from taking land without reimbursement (presumably for the creation of the Government), not to restrict the government from taking land outright, and the incorporation argument is not even particularly strong.

In other words, HLS, your truism is useless, and indeed its uselessness was the crux of the point I was trying to make.
2.14.2007 4:27pm
Debauched Sloth (mail):
My copy must have a typo. Right there in the Fifth Amendment, it says "nor shall private property be taken for public use without just compensation."
2.14.2007 4:34pm
Justin (mail):
You're missing the fact that the Fifth Amendment says NOTHING about private use. The only two conclusions one can say is that a condomnation is per se a public use, or that conodmnations/takings for private use do not require compensation. Since the first is more logical than the other, from a textualist standpoint, that one is applicable. But under neither originalism NOR textualism do you get the argument that you are making - that private property be taken for public use requires just compensation, that private property be taken for private property be banned. You bolding "public use" and being haughty about it doesn't change the fact - I can read too, believe it or not.
2.14.2007 5:24pm
Justin (mail):
Excuse my poor spelling.
2.14.2007 5:25pm
Ben Hall:
Justin, I think you provide a bit of a false dichotomy in your 5:24 post. How are those the ONLY 2 possible readings of that text?

Also, leaving that aside, if we accept the first of your readings, that condemnation is per se a public use, it leads to strange results.

For example, what if a mayor (with the collusion of a city council), decides to take a thriving business owned by a political opponent and give it to one of his cronies. Under your reading, that would be a "public use" and therefore, as long as the opponent was compensated at fair market value for the land, there is no constitutional issue. Seems to me a problematic result.

Would a better reading be that since government takings for private use are effectively theft at gunpoint, the government has no legitimate authority to conduct them. Thus only public use takings must be mentioned, the others being beyond the pale?
2.14.2007 6:07pm
Justin (mail):
Ben Hall, you're ignoring that there are political solutions to political problems. Certainly, if he gave his croneys a tax break, or unfair advantages in competition, this might not be unconstitution, but may still be illegal. It also might get said mayor booted from said job.
2.14.2007 8:59pm
Justin (mail):
As far as the false dichotomy, if youre willing to read in an entirely new clause that ISNT THERE, then yea, you can have a third reading. That's the point though - the text itself only supports two readings (as does an originalist historical analysis).
2.14.2007 9:00pm
Ilya Somin:
On the other hand, in all sorts of arenas that actually affect the politically powerless or significant political minorities - the drug wars, prisoner's rights, access to equal education and government services, and in large parts of the country (re: political power), gay rights - courts which use constitutional principles to override decisions that have democratic, political solutions are routinely denounced as activist and dangerous.

Many libertarians and conservatives have argued for stronger judicial and/or legislative protection of the poor in these fields. For example, I have advocated the abolition of the drug war right here on this blog, and I have also blogged about ways in which gay rights can be better protected and endorsed gay marriage. School choice (whose principal beneficiaries would be the poor) has long been a major libertarian/conservative cause.

The irony would be that the political process ROUTINELY fails the politically powerless, and yet only when it comes to something that affects taking away something that the politically powerless have little of anyway (unencumbered property) do we see liberterian-conservatives argue that a constitutional protection must result.

As I have pointed out many times in the past, takings do in fact affect large numbers of poor people negatively. At least 4 million people (most of them poor and/or racial minorities) have been displaced by blight or economic development condemnations since WWII. The rich and even the upper middle class have little to fear from eminent domain (except for the waste of taxpayer money), because they usually have enough political clout to resist it. Most of the victims of Kelo and other similar decisions are the poor.
2.14.2007 10:06pm
markm (mail):
Poor people definitely are affected by eminent domain. It isn't often a rich neighborhood gets torn apart to build a freeway or a football stadium.
2.15.2007 8:33am
Justin (mail):
Ilya,

even owning unencumbered net property in the United States makes you amongst the richest 60% of Americans. The people who get directly affected by takings tend to be people who own land in poor neighborhoods, not the poor themselves. While there are indirect effects to tenants, some of which are obviously serious, that's different than being a direct victim to Kelo itself. Housing for the poor routinely gets knocked down for new use, whether under a taking or a private transaction. This is marginal stuff from the perspective of the poor in aggregate, and particularly relative to many other constitutional decisions adversely affecting the poor and politically powerless.

Also note that I specifically said that this applies more to conservatives generally (the people who gave us gay marriage bans, criminalized sodomy, the drug war, Sandoval, and the El Paso Schools case) than to you. But while liberterians are far more friendly to political minorities than conservatives, when they enable conservatives the way they do, there's a limit to the goodwill that one gets for taking those positions.
2.15.2007 8:50am
Victor Krueger (mail):
One thing to consider in the 1950s Chicago RC church cases is that those individual church buildings and congregations did not stand on their own. The Roman Catholic Church is an international organisation with over 1 BILLION members, and it is a single organisation. If the Pope (or his subordinate bureaucracy) chooses to fight a condemnation, that fight is backed by the WHOLE RC CHURCH and all its resources.
A similar value land, building, and local congregation southern baptist convention church, on the other hand, stands alone. Other SBC churches may help, but its their choice to do so. The same is true of most american protestant churches. That individual church and congregation stands, fights, and loses alone; because they are a chihuahua against a rottweiler in a dogfight. The RC church wins because in their fight, they are the rottweiler and the city of chicago is the chihuahua.
2.16.2007 8:11am