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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.

Dilan Esper (mail) (www):
If you really care about this issue, this is going to be a strike against Obama or any Democrat. The abortion issue (and similar social issues) dominate the discussion of judges. Presidents don't seek litmus tests on other issues. So you are simply more likely to get a property rights protector from a conservative President than you will from a liberal, though any particular appointment might deviate from the expectation (i.e., there are some liberal property rights protectors and conservatives who think broad property rights violate judicial restraint).

It's not much different from the commerce clause. Conservatives are more likely to assert some limits, but, on the other hand, Scalia voted against limitations in Reich v. Ashcroft.

So if this is the thing you really care about, it's probably a party-line issue.
11.25.2008 7:45pm
Ilya Somin:
So if this is the thing you really care about, it's probably a party-line issue.

Maybe. But it hasn't turned out to be so at the state level, or among liberal political activists outside the federal legal establishment.
11.25.2008 7:51pm
Steve White (mail) (www):
I'm neither a lawyer nor a constitutional scholar, but I like to play around at writing Constitutional amendments. Here's my suggestion for the 28th Amendment:

Private property shall not be taken by the United States nor by the several states for public use, for which compelling evidence shall be made, without just compensation, nor shall the United States nor the several states take private property for the express purpose of transfer to another private party.

I'm sure there are lots of holes with this, but if one really wants to protect property rights, one must say so in the Constitution, and so depend on neither audacity nor hope.
11.25.2008 9:26pm
Steve White (mail) (www):
Already failed the writing test: should be, "... for which compelling reason shall be made, ...
11.25.2008 9:28pm
David Matthews (mail):
The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms" to victimize the weak. Ante, at 11 (O'Connor, J., dissenting).

Those incentives have made the legacy of this Court's "public purpose" test an unhappy one. In the 1950's, no doubt emboldened in part by the expansive understanding of "public use" this Court adopted in Berman, cities "rushed to draw plans" for downtown development. B. Frieden &L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them." Id., at 28. Public works projects in the 1950's and 1960's destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely "lower-income and elderly" Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; "[i]n cities across the country, urban renewal came to be known as 'Negro removal.' " Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. &Pol'y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the "slum-clearance" project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court's decision will be to exacerbate these effects.

From Justice Thomas' dissent in "Kelo."

Perhaps Obama should consider nominating Justices more like Clarence Thomas?

This sort of reasoning sounds a lot like: "[t]he empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."
11.25.2008 10:13pm
David Matthews (mail):
By the way, I had the above quote on the wall outside my office for about a year -- minus the citations, and a few obvious clues that it's from a Supreme Court dissent, along with the question: "Who said this?"

Written responses ranged from Thurgood Marshall or Stephen Breyer to Jesse Jackson, Roy Wilkins and Ralph Nader (our poli sci instructor was adamant that it came from Justice Marshall.) No one ever came up with the correct answer, although I suspect that if I reposted it now, there would be quite a few "Barack Obama" guesses.

(The St. Paul, Minnesota reference strikes near to my heart, since for many years I lived just north of the old Rondo neighborhood, which was wiped out by I-90, and helped out every year setting up the Rondo Days parade every third Saturday in July. "Take a left at the white guy and pull in about a half block up." We all contribute according to our abilities....)
11.25.2008 10:34pm