A sign that the liberals are going to blow it?

Like just about everyone else in the blogosphere, here and here as just two examples, I read The Unregulated Offensive by Jeffrey Rosen in the NYT Magazine this past weekend.

Just to give you a flavor of the article itself, the latter blogger plugs the article with

...the true ultra radicals want to destroy Congress's power under the Interstate Commerce Clause. Should they ever realize such a dream, the consequences would be more dire than you could ever imagine. Rosen lays it out in full, chilling detail.

At any rate, what struck me about the article was how naturally Rosen (and the latter blogger, too, impliedly) seem to get on the wrong side of the eminent domain issue and assume that the argument for limitations on eminent domain are part of some wicked conspiracy to get rid of the EPA, etc etc:

During the current term, the Supreme Court has heard three cases involving questions of economic liberty that, according to Greve, represent the most significant tests in a decade of the power of the Constitution in Exile movement. Kelo v. New London, which was argued before the court in February, concerned Susette Kelo, a woman who sued the city of New London, Conn., after it used its power of eminent domain to seize 90 acres of property, including her house. The city planned to turn the parcel over to a private developer in order to increase the tax base and revitalize the city. Chip Mellor's organization, the Institute for Justice, represented Kelo, whom the institute's lawyers had sought out because she seemed like a sympathetic victim. Standing before the justices, Kelo's lawyer, Scott G. Bullock, asked the court to reject the claim that as long as the state could point to a plausible public purpose for the taking of private property (like increasing the tax base), it could appropriate people's homes. Justice Sandra Day O'Connor, however, seemed unimpressed by the suggestion that courts should second-guess the economic judgments of legislatures.

Of course I don't doubt that many of the people who supported Kelo in her legal battle would very much like to see a massive roll-back..so maybe the intent is there. But so what?

Rosen is wrong to think that this is an important property-rights issue in the sense that refinement and limitation on governmental power to declare what is a "public purpose" -- "Public purpose" is anything we say it is! -- is either illiberal or would aid the dismantling of other regulations. I'd say that limitations on condemnation are social justice & "good government" issues in which justice is on the side of those who seek limits.

I am not sure in fact why conservatives think that this is "their issue." Certainly, big-business conservatives who are in bed with local interests (of both political parties) have the ability to use eminent domain etc etc must surely be absent. Are there really so many libertarians? I just don't see that a limitation on the definition of "public purpose" cannot be created without bringing down the whole structure. I mean, is there no principled way to distinguish the underlying "public purpose" of a zoning law which restricts steel plans to heavy industry zones from the "public purpose" which a town might use to justify condemning your junker  house to transfer it to me for free so that I can build (let's assume I am a rock star) my own home/recording studio? Do liberals really want to argue for the latter? I hope not and I hope that they are lining up behind Jane Jacobs on this one. (An amicus brief was submitted on her behalf.)   

Let me put it another way: liberals have got to stop thinking that everything that a group of individuals who are constituted at some particular point in time as "The Government" have any sort of lock on wisdom. I was in fact, dismayed, to see that Rosen would buy into the government (i.e. anything goes) side. If it would reassure the liberals, let's remember that eminent domain (along with other gimmicks such as "tax holidays" and Tax Increment Financing) are simply
1. not needed for economic development
2. often very unfair in its application.

And it's bad politics. The Democrats should get out front on this one and make certain limitations on government -- didn't Bill Clinton tell us that "The era of big government is over! -- part of its mantra.

The Supreme Court -- as "the least intrusive branch" may not want to limit eminent domain -- but I think it's a very appealing issue for politicians in swing districts who have to win over one side or another. The "true liberal" position (I say) is to limit governmental power so that insider deals to political cronies (they are always "cronies." aren't they? -- it's hard to avoid hackneyed language) are made more difficult. Why some liberals assume that any restriction on eminent domain is part of some grand conspiracy -- and should be opposed on that basis -- simply floors me. Better to acknowledge the intent of the other side to tear down regulation but be willing to agree that sometimes -- as in eminent domain -- the specific policy-position which ensues is the intellectually- and morally-correct one. Liberals should all be lined up in vast crowds behind Kelo. Where are the liberals on this one, in fact? I hope I am wrong but I am not aware that this eminent domain issue is seen as one of ours but one of theirs. I hope I am wrong. But I just don't hear much chatter about it and then when I see Rosen's assumption that being for limitations on eminent domain is a "bad thing" I get worried. So As a liberal, I've put in my suggestion on how to approach the issue:: A "least intrusive means" test for zoning?

Just remember, the house that the government condemns might very well be yours -- unless you are rich and well-connected. (Even Robert Moses rerouted parkways to avoid certain estates.)

•••

Btw, if you are interested in the amicus briefs in the Kelo case, don't miss this post by Laurence Aurbach.

Comments

[josh]

Hear hear! This was exactly my thought reading that passage, but better stated.

[Matthew Amster-Burton]

David, I always assumed you were a rock star.

[heh]

My favorite part on Kos was in the comments:

"These people seem to think that being a citizen of the US is a one sided contract: You get everything and the government gets nothing."

So the government is an entity separate from and indepent of the people? That explains alot.

[lindenen]

The funniest thing about Rosen's article is that the "Constitution in Exile" movement doesn't exist.

[David Sucher]

And unfortunately, it appears that an awful lot of the blogosphere is focussed on the "Constution in Exile' bit --- which in itself is harmless, either way.

[joe o]

Eminant domain is often a bad idea. I don't really have any problem with courts restricting the goverment's use of eminant domain.

The "constitution in exile" guys ultimate targets are things like regulations that effect property prices, and regulations that concern labor contracts, such as minumum wage laws. I am less hot on those ideas.