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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.

einhverfr (mail) (www):
So here is a question: Is it valid for the courts to punt the role of specific controls back to elected officials?

Can the fact that 43 states adopted reform legislation be seen as legitimating the court's approach?
11.29.2008 1:47pm
OrinKerr:
I would be very surprised if Obama had a public position on Kelo. Presumably he agrees with it, but it's not a popular position, so why would he take a public view of it? It's not directly relevant to his job, and his base isn't interested in the issue, so I would expect him to keep mum.
11.29.2008 1:53pm
OrinKerr:
Actually, make that "a bit" rather than "very." "very" is too strong.
11.29.2008 1:54pm
Ilya Somin:
Can the fact that 43 states adopted reform legislation be seen as legitimating the court's approach?

I address that question in this article, where I explain why the majority of the new state laws are likely to be ineffective, and many may be deliberately designed to be so.
11.29.2008 1:57pm
theobromophile (www):
einhverfr:

Only in certain circumstances. Part of the point of the Constitution is that certain decisions cannot be made by elected officials - for example, to curtail free speech rights, or to establish a state religion - regardless of whether or not those decisions would be popular, unpopular, or, if erroneous, repealed in light of public criticism. In some ways, it's there to prevent the doomsday scenario when elected officials refuse to listen to their constituency on matters that are fundamental to the operation of a free society.
11.29.2008 1:57pm
Ilya Somin:
I would be very surprised if Obama had a public position on Kelo. Presumably he agrees with it, but it's not a popular position, so why would he take a public view of it? It's not directly relevant to his job, and his base isn't interested in the issue, so I would expect him to keep mum.

I agree with the first part of this statement (it is indeed possibly that Obama agrees with Kelo, but doesn't want to say so because it would be an unpopular stance). However, it is relevant to his job because 1) it is relevant to assessing judicial nominees, and 2) the federal government funds many economic development and blight condemnations and has many other policies that undermine property rights.

Also, important parts of his base do care about Kelo, as witness the outrage the decision drew from African-Americans and liberal activist groups such as Ralph Nader's Public Citizen and the NAACP (cites in Part I of this article).
11.29.2008 2:00pm
MCM (mail):
Professor Kerr:

I'm confused, why presume Obama agrees with Kelo? And do you mean "agrees" as a matter of law, or agrees that it represents good public policy?
11.29.2008 2:00pm
theobromophile (www):
Back to the topic at hand (sort of): given how much the population hates the Kelo decision, it would seem like a no-brainer for Obama to come out against it (even if he weren't a lecturer in constitutional law). Nevertheless, he criticised the Kennedy v. Louisiana decision, and praised Heller - both, seemingly, after gauging the public's reaction to each. If he were to criticise Kelo as well, that would make a nice triumvirate of cases in which Obama - he who voted against Alito and Roberts, despite having great respect for their intellectual capabilities and characters - would have found their jurisprudence, on a deeply divided issue, to be entirely correct.

Maybe I'm cynical, but liberal judges are a godsend to politicians on the left, who can enact progressive policies into law without the political minefield of the legislative process. I think Obama knows this, and would certainly appoint very liberal judges, but he knows that if he beats up on them too much (Heller, Kelo, Kennedy v. LA, etc), normal/average/moderate Americans might start pushing for a different type of judge. What liberal in his right mind would want to highlight the fact that the American public, on deeply divisive issues, agrees with Scalia, Thomas, Roberts, and Alito, sometimes agrees with Kennedy, and disagrees with RBG, Stevens, Souter, and Breyer?
11.29.2008 2:11pm
Ilya Non-Somin:
Ilya,

Aside from Kennedy v. Louisiana, Heller, and Boumediene, how often has Obama either supported or criticized a specific Supreme Court decision? Notably, all of those cases were decided during his campaign.
11.29.2008 2:11pm
Ilya Somin:
Aside from Kennedy v. Louisiana, Heller, and Boumediene, how often has Obama either supported or criticized a specific Supreme Court decision? Notably, all of those cases were decided during his campaign.

He has at the very least come out in favor of Roe v. Wade, and other "privacy" rights decisions.
11.29.2008 2:15pm
Public_Defender (mail):
I guess conservatives (or at least libertarians) will just have to do what they keep telling liberals to do--stop litigating the Kelo issue and start legislating.

There are two big checks on abusive use of eminent domain--1) the people who do it are eventually democratically accountable; and 2) the government has to pay whatever a jury says is fair market value for the property. I can add a third now--litigation risk. A developer would now think twice before doing an economic development project using eminent domain because the development could get caught up in years of uncertain litigation under state law.
11.29.2008 2:22pm
scosm:
Maybe he is ambivalent about the decision and doesn't want to come out on record and say anything about it?
11.29.2008 2:26pm
theobromophile (www):
2) the government has to pay whatever a jury says is fair market value for the property.

True, but a jury, unlike in the situation of medical malpractise, is doling out its own money for this, too. Assuming the trial takes place in the same county as the eminent domain taking, the jury will consist of local taxpayers, all of whom know that their taxes could go up if the town or state is hit with a huge verdict.
11.29.2008 2:28pm
Cornellian (mail):

Maybe I'm cynical, but liberal judges are a godsend to politicians on the left, who can enact progressive policies into law without the political minefield of the legislative process.


Such enactments are hardly restricted to the left.
11.29.2008 2:31pm
festivus (mail):
Either (a) he is ambivalent, (b) he agrees that the unpopular decision was correct as a matter of law, or (c) he believes a decision supported by Supreme Court precedent was incorrectly decided.

Whichever was true during the campaign, he was probably wise to keep his own counsel.

Moving on. . .
11.29.2008 2:33pm
einhverfr (mail) (www):
Theobromophile:

My question was one of specific controls. It seems to me that if the court says "Eminent domain only applies if the following controls are in effect" then this is a clear indication of legislating from the bench.

There are cases where the elected branches are unable to provide such controls and the court should step in when required, but I firmly believe that the court should only do so when past precedents have been abused. THere are a number of other supreme court decisions where I only agree with the court because I believe in judicial restraint. Eldred v. Ashcroft is a good example of this. Here the court allowed retroactive copyright extensions enacted specifically to keep the first Mickey Mouse movie from becoming public domain (hence the law in question is called by its critics the Mickey Mouse Protection Act). I would agree with this reasoning only if we don't see repeated attempts to do protect specific works. Otherwise "limited times" of exclusive rights in copyright law have no effective meaning.

So my view on Kelo is that it is a dangerous precedent but one which gives elected branches of government the benefit of the doubt with regard to implementing proper controls. If such projects became widespread, I would support revisiting the precedent.

But let's set into an alternate hypothetical universe for a moment and ask a difficult and probably unpopular question: Suppose in the wake of Plessy v. Fergusson, states had provided fully equal facilities for Blacks and Whites despite segregation. We all know they didn't, or else Rosa Parks wouldn't have had to give up her seat on the bus. But suppose they did. In such an alternate history, would Brown v. Board of Education still be properly decided if it came up? Or would judicial restraint demand a different outcome? (One could indeed argue that in our real universe, Brown merely fulfilled on the promise of equal facilities articulated in Plessy and was no more of a radical departure from past precedent than Casey v. Planned Parenthood was from Roe v. Wade.)
11.29.2008 2:39pm
MarkField (mail):
Let's have some perspective here:

1. To claim that the reaction to Kelo involved a broader political backlash than any other in the entire history of the Court is absurd. We have had Constitutional amendments passed in response to Court decisions (11th, 14th, and 16th); the 3/4 rule essentially guarantees a broader political backlash to those opinions than to one for which there is no chance of such an amendment. And that leaves out other opinions (Brown, Roe) with far more intense and widespread reaction.

2. Kelo is a federalism decision, one which takes power away from federal courts and grants it to the states. That means Obama, as a federal official, has no power or influence over the takings affected. To the extent that federal takings may be controlled by the same rule, there's no reason for Obama to take a position unless and until a bill comes through Congress.

3. The assertion that Obama must have a position on Kelo simply because lots of other people do is one that I'm going to have follow carefully, given Clarence Thomas's response regarding Roe v. Wade in his Senate confirmation hearing. IOKIYAR.
11.29.2008 2:43pm
Constitutional Crisis (mail):
He's probably not going to nominate libertarian judges. Nor should he. Elections have consequences.
11.29.2008 2:51pm
Constitutional Crisis (mail):
to put a finer point on my snark, I guess I just don't see "why it matters." Kelo is an ideological purity test for the right, not the left. Even if, as alleged, there are many on the left who disapprove of its potential policy implications, it's not taken as a harbinger, the way the right takes it.

Insofar as Obama doesn't need to justify his picks to the libertarian wing of the Republican party, it really doesn't matter what his position on the matter is - or whether he would use it as a litmus test for judges he nominates.

What you mean to say, is simply that YOU disapprove of Kelo's legal and political implications, and fear that Obama might not.
11.29.2008 3:13pm
David Welker (www):
Let us see. Kennedy v. Louisiana and Heller were decided in 2008 during the campaign. The Kelo decision occurred in 2005. Should we really be surprised when he mentions these but not Kelo? Oh wait, Somin mentions another case Obama has taken a position on:


He has at the very least come out in favor of Roe v. Wade, and other "privacy" rights decisions.


Are you really equating Kelo with Roe v. Wade? Really?? I don't mean this in as an intellectual matter, I mean this as a political matter. These two cases do not even exist in the same universe in terms of political significance.


1) it is relevant to assessing judicial nominees


If we knew Obama's precise position on Kelo, would we be able to determine what sorts of justices Obama would pick? Probably not. Regardless of his position, it is highly unlikely that he would make the views of his nominees on Kelo a litmus test. (Given Obama's pragmatic tendencies, I am guessing he will pick more justices in the mold of Stephen Breyer.)

Overall, "backlash" notwithstanding, Somin's obsession with the Kelo case is not the norm. Yes, many legislatures passed legislation in response to Kelo. But then they moved on. Somin has not moved on. Not that he should -- we need specialists who are experts on particular topics. But, I think that Somin is suffering from a common problem that afflicts specialists. He is assigning much more importance to a decision in his specialty than the general public would.

I would say the general public has the better point of view on this one. Clearly, the economy is the number one issue on their minds, and rightly so. Before that, it was the Iraq war. These issues are vastly more important than the Kelo decision.
11.29.2008 3:23pm
Joe - Dallas (mail):
Fair market value as determined by the jury doesnt hold up in reality.

Unfortunately, most of the time, the courts will uphold a value to be paid to the property owner based on the market value of the property in its "present use" as opposed to the highest and best use. This often is defined as the best.
11.29.2008 3:39pm
Behringer:
I agree completely with Mark Field and Constitutional Crisis. Ms. Somin hates Kelo, which is fine, but that doesn't mean every politician out there "should be legitimately expected" to have a strong view on the case. In any event, even if he were to express some sort of mild approval of Kelo, that wouldn't mean that he hates property rights. I love how law professors all think they live in a world where everything they think and say is right and just and all other viewpoints are bad and wrong.

And stop pretending that his race has nothing to do with this. His being black is clearly what led you to bring in all that stuff about the NAACP and minority property rights. I mean, all blacks must hate or have a really strong view on Kelo right? You should take a read through Clarence Thomas' dissent. The practical effect of Kelo and decisions like it has indeed been to displace minorities, but that's more of a class issue, not a race issue. Your criticisms would be more relevant, then, if they were directed to people who are experts on "Poverty and the Law," not people who "specialize in racial issues" like Obama. I suggest you go find those Poverty and the Law people and ask them why they haven't expressed a position on property rights that is identical to yours.
11.29.2008 3:40pm
JB:
Considering the main issues of the campaign (Iraq, the financial crisis, health care), and the substance of the main distractions (Ayers, Wright), I'm not surprised Obama has said nothing.

Local and state governments tend to be the ones doing the taking, not the federal government, so Obama would not be directly involved in eminent domain cases as President. The closest he'd come is appointing Supreme Court justices who'd overturn Kelo, and there are hotter-button judicial litmus-test issues on both the left and the right.

In short, since nobody asked him during the campaign, I'm not surprised he hasn't said anything, and I don't think that silence says anything about his opinion on the case.
11.29.2008 5:19pm
josil (mail):
I get the sense that liberals, especially on the SC, do not find property rights in danger so much as "privacy" rights. That the former is so clearly protected in the Consitution and the latter is implied(at best)makes things a bit unworldly. One does not have to be Libertarian to find numerous instances of local abuse of eminent domain. In fact, you would have to be obtuse to ignore the powers that usually prevail in localities. The idea that the less powerful can prevail in democratic elections is not well supported by the evidence.
11.29.2008 5:29pm
American Psikhushka (mail):
Constitutional Crisis-

I guess I just don't see "why it matters." Kelo is an ideological purity test for the right, not the left.

Not to the extent that property rights are important and fundamental civil rights. That should make it important to the left as well. Especially that portion of the left concerned about civil rights.

What you mean to say, is simply that YOU disapprove of Kelo's legal and political implications, and fear that Obama might not.

This likely hinges on whether you believe property rights are important, fundamental civil rights. If you do not, please explain your reasoning.
11.29.2008 6:37pm
Joe - Dallas (mail):
I was at business lunch a few months ago where the subject of Kelo came up. I was suprised that several well educated individuals thought that Kelo was upheld by the conservative wing of the court ie the "side that doesn't respect individual rights - privacy, etc." Several educated individuals even blasted Scalia for his bad decision.

That being said, my guess is that Obama did not want the subject of what type of Justice would be most likely to uphold the rights enumerated in the constitution.
11.29.2008 6:38pm
Constitutional Crisis (mail):
Am Psi:

You missed (and proved) my point.
11.29.2008 6:53pm
courtwatcher:
Even assuming that Prof Somin is correct about the importance of Kelo, why would a federal elected official or a candidate for federal office be "expected" to express an opinion? It's fundamentally about the relationship between local governments and private citizens (and clearly has implications for states' land use policies too). But isn't other federal officials' commenting on Kelo really grandstanding? Why would we expect Obama to do that?
But if the point is just that Obama is unlikely to prioritize an aggressively libertarian property rights agenda in his judicial appointments, I think it's fair to say that would be unsurprising.
11.29.2008 7:02pm
JB:
There's also the question of whether the law is an ass. That is, if Kelo was rightly decided, then the law provides for unjust outcomes and should be changed, but not by Supreme Court activism.
11.29.2008 7:28pm
American Psikhushka (mail):
Constitutional Crisis-

You missed (and proved) my point.

Not at all, on either count. And nice glib attempt to avoid having to provide (and defend) your reasoning.

The point is that property rights are indeed fundamental civil rights. The main problems with things like slavery and indentured servitude, for instance, is that they rob an individual of the right to the value of their labor and their right to self-ownership. It's hard to claim that those aren't fundamental civil rights, but I welcome your attempt.

And if you share the left's stated goal of raising the standard of living for the less fortunate I'm at a loss to see how that's going to be accomplished without strong property rights. Socio-economic upward mobility results from being secure in one's property rights. Saving and investing the fruits of one's earlier labors to provide for your family and raise one's standard of living. How can that be accomplished without strong property rights?
11.29.2008 10:30pm
American Psikhushka (mail):
And if you share the left's stated goal of raising the standard of living for the less fortunate I'm at a loss to see how that's going to be accomplished without strong property rights.

Commenting on my comment: It's the goal of the libertarian to raise the standard of living of everyone - including the less fortunate - by following sound economic policy.

The statement above sounded too much like the standard diatribe from the left that only the left cares about the less fortunate.
11.29.2008 10:38pm
winstontwo (mail):
Obama still has not taken a position on designated hitter question.
11.30.2008 12:31am
Vermando (mail) (www):
I just wanted to compliment you, professor, for trying to think constructively about how libertarians can work to achieve their goals under the new administration.

I don't agree with you on everything, obviously, but I've admired you for awhile as an honest broker and a man of principle, and this only increases that admiration.

Bon chance.
11.30.2008 1:46am
Allan (mail):
I don't have a problem with Kelo. If the government wants to pay a fair price for property and put it to some other use, fine. One person should not be able to stand between the will of the majority of the community.

Although in law property is not fungible. It really is. Everything has value. So, to the extent the government is trading a non-concrete item, money, for real stuff, property, I am not so worried.

I do have a problem with the way government pays for property taken in eminent domain cases. There are two issues. First, government valuation of property is rarely fair on an objective basis. Second, there is no value placed on subjective value of property from an owner's point of view. One man's shack is another's castle...
11.30.2008 2:45am
Constantin:
Aside from Kennedy v. Louisiana, Heller, and Boumediene, how often has Obama either supported or criticized a specific Supreme Court decision? Notably, all of those cases were decided during his campaign.

Obama has twisted and mangled Ledbetter since the day it came down, to pander to women.

I'd guess Barack hasn't commented on Kelo because like many on the Left he's for it (recall Pelosi's bizarre response in the wake of the decision), but most of the country was appalled by the decision, and it wouldn't do him any political good to mention this dissonance.
11.30.2008 6:57am
Constitutional Crisis (mail):
AmPsi:
The point is that property rights are indeed fundamental civil rights. The main problems with things like slavery and indentured servitude, for instance, is that they rob an individual of the right to the value of their labor and their right to self-ownership.

See, this is my point. You take your view of property rights as the fundamental right upon which all else is based, which leads to, among other things, the critique of slavery you stated above. That's fine, you're entitled to your opinion, but acknowledge it for what it is: the ideological firmament of libertarianism that provides the context for all issues, including the moral failures of slavery.

It does not seem to me that Obama's core constituency views Kelo as a threat to their worldview in the same way that libertarians do. That's a normative statement that tends to support my thesis, i.e., it really doesn't matter whether Obama takes a position on the case or not. Insisting that it matters is really just a personal complaint of someone who feels unrepresented by Obama's purported views. It's a rhetorical device, nothing more.

As an aside, I don't really see how Kelo logically implies a threat to social equality or the loss of Constitutional protections unrelated to eminent domain. That seems like quite a leap to me.
11.30.2008 9:23am
pst314 (mail):
"As an aside, I don't really see how Kelo logically implies a threat to social equality or the loss of Constitutional protections unrelated to eminent domain. That seems like quite a leap to me."

Hubert Humphrey famously said that he would eat a copy of his Affirmative Action legislation if someone could find any language that mandated quotas. Funny how judges managed to come up with creative interpretations to support quotas. And for just one more example, the Supreme Court has creatively interpreted the Commerce Clause of the Constitution to allow federal regulation of virtually anything, even if there is no interstate activity. So I think it is legitimate to fear what might be done by judges who no longer feel bound by the Constitution.
11.30.2008 9:35am
Constitutional Crisis (mail):
Note that by arguing "Why it matters," the post purports to offer something new to the analysis, rather than just a retread of disagreement with the decision. But the post doesn't really offer anything new, and the only basis for saying it matters is that others allegedly disagree with the decision and took positions on it. I guess if tht's the justification - others took a position on Kelo, so Obama should - then there's at least a point to the post. But to the extent that Obama's failure to take a position on Kelo is seen as a Rosetta Stone to judicial appointments, it seems very speculative to me. And even if we could reach the inference offered, it still wouldn't matter because, by definition (he's a Democrat, as opposed to Republicans who appoint nothing but balls and strikes umpires), Obama will nomi nate unscrupulous activist judges (to go with his Cabinet of unqualified partisan hacks). So where's the significance?
11.30.2008 9:40am
Constitutional Crisis (mail):
pst314:
So I think it is legitimate to fear what might be done by judges who no longer feel bound by the Constitution.
Let me break it down to you, in case you're unfamiliar with how Constitutional interpretation works. There are many different schools of thought as to how the Constitution should be interpreted, and there may even be some variation among the general proponents of each mode when confronted with different contexts demanding resolution. (See, e.g., Bush v. Gore). When people disagree as to the proper interpretive process or outcome, it is not evidence that one "no longer feel[s] bound by the Constitution." Throwing statements like that around based on a methodical (or even substantive) disagreement is really a call for blind fealty to a narrow perspective — the writer's. That's dangerous. It's much more dangerous than the boogeyman judges that you live in fear of.
11.30.2008 9:54am
pst314 (mail):
"Let me break it down to you, in case you're unfamiliar with how Constitutional interpretation works."

Gee, thanks for the condescending words. You're so helpful. But I suppose that you have to resort to insult when the historical facts are right there for all to see.
11.30.2008 10:22am
Constitutional Crisis (mail):
Thanks for the condescending words.

Think of it as a game of rock/paper/scissors. Condescending words beat fear. Fear beats rationality. Rationality beats condescending words.
11.30.2008 10:37am
David Warner:
The Obama administration presents a unique opportunity for progressives to re-examine their traditional positions on such issues as property rights and school choice to consider how progressive they truly are.

You can be on Robin Hood's side or King John's, not both.
11.30.2008 12:32pm
trad and anon (mail):
Maybe I'm cynical, but liberal judges are a godsend to politicians on the left, who can enact progressive policies into law without the political minefield of the legislative process.

Such enactments are hardly restricted to the left.
Indeed. Remember how the conservatives on the Supreme Court repealed the Equal Pay Act by "interpreting" it so as to make it unenforceable?
11.30.2008 1:33pm
trad and anon (mail):
I think there are several reasons why Obama hasn't taken a position on Kelo:

1) Not many voters care. The case engendered a public reaction at the time, but the ordinary people who had heard about it had forgotten about it by the time the election came around. Eminent domain is never a major issue for voters and was even less so this cycle: the issue that dominated this cycle was the economy, overwhelming even national security and the Iraq War.

2) The small number of voters who really care about Kelo are economic libertarians and conservatives with libertarian inclinations who weren't likely to vote for him anyway.

3) Economic development takings are mostly a local issue that Presidential candidates don't need to have an opinion on.

4) To the extent the Democratic base cares about the issue, it's divided. Groups like NAACP opposed the decision on the grounds that "economic development" takings disproportionately impact poor and minority individuals. Other liberal groups supported the decision because they think economic development projects are a good idea and because of concerns that one pro-property rights decision might pave the way for other pro-property rights decisions. Thus taking a position either way was, and still is, a losing proposition, because it only gains him support among interests that support him anyway, while annoying other liberal groups.
11.30.2008 2:02pm
seadrive:
These threads strike me as an example of a person who is deeply interested in a thing feeling that everyone else should also find it extremely important.
11.30.2008 2:41pm
American Psikhushka (mail):
Allan-

One person should not be able to stand between the will of the majority of the community.

As a general principle - sure they should. Because often the "majority" is wrong.
11.30.2008 4:09pm
American Psikhushka (mail):
Constitutional Crisis-

It does not seem to me that Obama's core constituency views Kelo as a threat to their worldview in the same way that libertarians do. That's a normative statement that tends to support my thesis, i.e., it really doesn't matter whether Obama takes a position on the case or not.

It does to the extent that his constituency is concerned with civil rights and Kelo in turn weakens those rights. Just because a group doesn't recognize something as a problem doesn't mean that it isn't one.

Insisting that it matters is really just a personal complaint of someone who feels unrepresented by Obama's purported views. It's a rhetorical device, nothing more.

I guess you can claim that, but the fact is that there is an overlap between property rights and civil rights. Violations of some property rights can and do weaken some civil rights. If someone is seriously concerned with civil rights it would seem odd that they aren't concerned about those rights being weakened.

As an aside, I don't really see how Kelo logically implies a threat to social equality or the loss of Constitutional protections unrelated to eminent domain. That seems like quite a leap to me.

It's a threat in that it's a mechanism that is being expanded, sort of like the creeping commerce clause. Previously it was for development that was pretty easily recognized as something for actual public use - hospitals, roads, etc. Now it's been expanded to private projects that are supposedly or projected to be good for the public. The notion that someone should be able to force people out of their homes so they can build a pet rock factory that might or might not be successful because they influenced or BSed some local politicians and bureaucrats is pretty repugnant.

Which is all the more reason why it's strange that there isn't more protest from progessives, the left, etc.(Not to minimize the groups who have protested.) Normally anything with involvement from corporate interests is viewed with suspicion. Here you have business interests using government to take people's homes offering basically a business plan as justification. I guess it stems from faith in government and politicians. Get the government behind it and it appears you can sell almost anything.
11.30.2008 5:04pm
Cornellian (mail):
These threads strike me as an example of a person who is deeply interested in a thing feeling that everyone else should also find it extremely important.

Sadly, a particular hazard of being a professor. Reminds me of a comic strip I once saw depicting a prof bellowing at his students "he who controls magnesium controls the world!"
11.30.2008 5:19pm
David Welker (www):

Sadly, a particular hazard of being a professor. Reminds me of a comic strip I once saw depicting a prof bellowing at his students "he who controls magnesium controls the world!"


Now this is funny. Thanks for the amusing quote.
11.30.2008 5:52pm
MLS:
..."he who controls magnesium controls the world!"

I would love to be the "he" in the quote. Nothing quite like cornering the market on an industrial commodity.
11.30.2008 6:56pm
SanFranciscoJim:
Obama won the Presidential election and he has about 1000 things that are more important to him and his supporters than Kelo. You have spent the last decade supporting the Republicans and now they are out of power.

The truth is, no one in The Administration really cares what your concerns are. That is what it means to be out of power. Get used to it.
11.30.2008 7:21pm
David Warner:
SFJimmy,

"The truth is, no one in The Administration really cares what your concerns are. That is what it means to be out of power. Get used to it."

Thanks for the tip there, Jimbo. Way to keep things impersonal. Unless you yourself are much more influential than you strike me as being, if you were under the impression that either the Jan 19th Administration or the January 20th one cared one iota what your personal concerns were, you were mistaken.

They're called ideas. Try them, they can be Enlightening.
11.30.2008 8:31pm
American Psikhushka (mail):
SanFranciscoJim-

Obama won the Presidential election and he has about 1000 things that are more important to him and his supporters than Kelo. You have spent the last decade supporting the Republicans and now they are out of power.

Libertarian does not equal Republican. Often they are at odds with Republicans on many issues.

The truth is, no one in The Administration really cares what your concerns are. That is what it means to be out of power. Get used to it.

Sure they do, to an extent they just don't realize it. They are strong supporters of civil rights and abuses like Kelo weaken those rights. But whether they realize it or not eventually the public, including the voters, will realize it.
11.30.2008 9:39pm
AK (mail):
Considering the main issues of the campaign (Iraq, the financial crisis, health care), and the substance of the main distractions (Ayers, Wright), I'm not surprised Obama has said nothing.

When confronted with the accusation that Obama was all talk, an empty suit with pretty rhetorical flourishes but no substance, Obama's supporters directed the accusers to Obama's website, where they would see that he had detailed policy positions on scores of issues.

Was Kelo one of these positions? I'm guessing not, as no one here has directed us to anything. I don't know if it means anything, but it's curious.
11.30.2008 10:20pm
AK (mail):
Which is all the more reason why it's strange that there isn't more protest from progessives, the left, etc.(Not to minimize the groups who have protested.) Normally anything with involvement from corporate interests is viewed with suspicion. Here you have business interests using government to take people's homes offering basically a business plan as justification. I guess it stems from faith in government and politicians. Get the government behind it and it appears you can sell almost anything.

Progressive governments in bed with corporations to increase the power of both? Where have I heard that before?
11.30.2008 10:35pm
devil's advocate (mail):
SanFrancisco Jim

The truth is, no one in The Administration really cares what your concerns are. That is what it means to be out of power. Get used to it.


I don't think Obama or Bill Clinton are singing to their own choir when they equivocate in their pronounments on Roe v. Wade. They do care what the other side thinks --especially to the extent that majorities are constructed by attracting folks who could as easily be in the other camp -- but because unnecessarily energizing the opposition is a stupid thing to do.

It is too early to tell if Obama foresees a conscious allegiance to the decision's allowance for government management of the economy with monopolistic cartels or if he is just consumed by the 'thousand other things'. But given the class context of Kelo and its relative prominence among decisions in the public mind, it does strike odd that there might not have been some bland pro forma reference to the decision ten miles deep in some policy proposition in the campaign.

AMerican Pusihushka


The notion that someone should be able to force people out of their homes so they can build a pet rock factory that might or might not be successful because they influenced or BSed some local politicians and bureaucrats is pretty repugnant.


I can't disagree, but at least this is pseduo-majoritarian public choice with a beard of property rights in its inadequate but nonetheless extant compensation mechanism. All the focus on Kelo as the touchstone of property rights has diminished and forgotten the plight of those forced to keep their properties as pet rock factories with no compensation.
12.1.2008 6:28am
Ben P:
It seems to me that it's been amply demonstrated in this discussion that, presuming Obama the constitutional law professor is aware of Kelo, he probably hasn't expressed a viewpoint because his viewpoint on a policy ground as complex as Kelo in a short soundbyte, and in American politics complex nuanced responses often simply become ground for attacks.

It's amply clear that part of his party holds the belief that personal property rights should be subsumed into government economic policy. Of course everyone would like it if that policy works, but it *always* will, in the eyes of it's creators.

It's equally clear that other elements of his party and some of his former working ground is that people he worked for were those among those most likely to be negatively affected by economic improvement takings.

If I had to guess his viewpoint it would probably be somewhere between these, and one that's not easily expressed in a soundbyte.
12.1.2008 10:15am
Enki:
There's something I don't get. It seems to me that the critics of Kelo are more upset about the result than the law. but at its root, the decision is very pro-libertarian - with a result in that case that angered a lot of people, but also legitimized a process (despite the red herring argument that many of the state laws may be toothless) that, I would think, most libertarians would be happy with.

the case set a constitutional minimum, and called upon the states to set higher standards if they wish. what could be more refreshing from a court that is constantly criticized as "legislating from the bench"?

the old aphorism seems to ring true here. bad facts make bad law. well, this is one of the few cases where good the court made good law in spite of bad facts. IMO the focus should be less on the bad result of that case (a fact which most, I am sure, agree on), and more on the law that came out of it.
12.1.2008 10:58am
Melancton Smith:
Constitutional Crisis wrote:

Think of it as a game of rock/paper/scissors. Condescending words beat fear. Fear beats rationality. Rationality beats condescending words.


I prefer Rock/Paper/Scissors/Spock/Lizard myself

Oh and:

SPOCK!
12.1.2008 11:38am
ruralcounsel (mail):
"The truth is, no one in The Administration really cares what your concerns are. That is what it means to be out of power. Get used to it."

Ahh, the refreshing aroma of Change, Hope and bipartisan cooperation! It's nice to see Obama and his supporters are traditionalists after all. Traditional political retribution for the losers.
12.1.2008 12:31pm
David M. Nieporent (www):
Indeed. Remember how the conservatives on the Supreme Court repealed the Equal Pay Act by "interpreting" it so as to make it unenforceable?
No. In fact, the Equal Pay Act wasn't before the court at all, because Ledbetter's attorney committed malpractice by failing to pursue a cause of action under that statute.

Nor was Title VII -- the statute actually before the court -- made "unenforceable."
12.1.2008 12:57pm