Hassinger, Turkheimer and Agenda 21 -Final Round

November 30, 2012 12:00 pm

by Stefan · 25 comments

Turkheimer: It becomes impossible to debate Kelo v. New London if one side believes it is part of a global plot to deprive suburbanites of their property rights, rather than a discussion of where the line should be drawn on the use of eminent domain by the government. You are correct about Kelo, though, and I feel for those folks. Mostly because that case seems to have the same plot as the opening to the movie Goonies, and like the Goonies, I never say die so I will debate it anyway.

Kelo stands for the proposition that the government can take your land (for which they have to pay fair market value) purely for the economic benefit of the whole community. In Kelo, the local government made an ill-informed real estate decision, but since the nation as a whole did the same thing right about that time, I won’t excoriate them for it. The 5th amendment takings clause is supposed to limit eminent domain use, and it sort of does, but just compensation doesn’t go a long way when you start thinking that your property ownership as an inviolate right.

I hope everyone is sitting down: Sometimes the government has a right to take your land for the betterment of everybody. This is what Dworkin called a “social goal” and sometimes it outweighs a “right”. The gist is, with few exceptions, placing desired and useful assets each within the exclusive ownership of a single person or firm, who or which is then free to exchange with others, is the best way to ensure that those assets are either consumed by the persons who value their consumption most highly or put to the use that will eventually yield the highest possible total social sum of consumer satisfaction (or willingness to pay). A point to keep in mind is that utilitarian and economic theories are both consequentialist and (social) goal-based.

That’s how market economies work. Resources must flow to the most efficient use. So what Kelo stands for is the triumph of the “free” market.

But none of that matters, because everyone agrees we have to have telephone lines, roads, cable and internet, etc, and none of those are possible without eminent domain used on behalf of non-governmental entities  -but the Agenda 21 crusaders don’t really have a problem with any of that. It’s when it involves rapid rail, or a park, or stream buffers, or green energy projects, now it’s a global FEMA camping, fluoride injecting, climate change hoaxing plot to steal your children and force them to join a Halal Sharia Brigade.

And so you can’t discuss it rationally. And a small, vocal minority get to tell the rest of us we can’t have nice things. Like sidewalks.

Hassinger: I really can’t argue with someone who posits that “…what Kelo stands for is the triumph of the free market.” I could point out that “free” markets don’t force participation in them, but I won’t even try. But here is a vision of the sustainable utopia of the future: 200 square foot houses. That’s not a typo, that’s the latest sustainable, affordable “trend” in, where else, Washington D.C. There’s your sustainable future -adults choosing to live in play houses. And it’s here now.  Tell me again who’s crazy?

 

Ed November 30, 2012 at 12:30 pm

“Hassinger, Turkheimer and Agenda 21 -Final Round”

Best thing I’ve read all month.

Ed November 30, 2012 at 12:34 pm

Also, I’m not sure how much of this is trolling, how much is serious and I don’t really know if I want to know the answer but something tells me Mike didn’t read much of his article.

That house is “one of three under construction in what is thought to be one of the country’s first tiny-house model communities.” Not exactly a trend. And not exactly sure the most extreme elements of “the movement” are indicative of anything (sort of like equating Freegans with Locavores, I suppose.)

Anyway, I’m not sure if you’ve heard of these off-the-beaten path places called Tokyo, Singapore, Hong Kong, London and New York but frighteningly small living spaces are the norm…. the future is now.

Mike Hassinger November 30, 2012 at 2:03 pm

FTFA: “…the tiny-house trend has drawn a cross section of fans to the Stronghold community — especially young couples who are living with their parents.” And: “…affordable-housing advocates are researching the possibility that attractive micro homes could one day complement or replace stigmatized trailer parks and low-income housing…” AND: “Austin, 23, sees the tiny home he’s building as perfect for Generation Y — underemployed, credit-crisis kids who know they will probably never achieve the “Mad Men”-era American ideal of a one-income family with a large house in the suburbs, two kids and two cars.”

Keep running your mouth, Ed, and I’ll have you sent to one of those time-out houses.

Ed November 30, 2012 at 5:12 pm

A whole lot of coulds, possiblys and mights in there that bring the grand total of 200-square foot houses to…oh wait, still three.

David Staples November 30, 2012 at 3:27 pm

Just out of curiosity I did a quick Google search on the Interwebs. See NYC. You too could live in this “MASSIVE” 700+ square foot apartment for only $3100 / month:

http://www.rentalhomesplus.com/New-York/New-York/NO-FEE-700-sq-f-MASSIVE-FLR-TO-CEILING-WINDOWS-CHEF-KITCHEN-PICTURES/1024722?searchCriteria=mZ1LdI2SZ3tq6Rz3ix2k5jyW1vhTMBmY4dH9-|X1WUFt/vbxelW-|m-|LzzQGWVUyTeQ0jUE7ZP77HBr2Vz4zMbeDVktF7ikw5Mt33djK-|95hdTUzvTOJr2mtImng06kTASp8OWbw0RY3r3RST8uG2WqwaxG5eBu-|OtokvoV4LIyHC7icqnVyMkkw==&sid=88df261c-543c-4207-a047-a69b9ed2b896&stype=seo%20neighborhood%20search&origin=apts

David Staples November 30, 2012 at 3:28 pm

…and since that didn’t work… http://bit.ly/TwPMSB

dsean November 30, 2012 at 3:49 pm

In fairness, that’s in Chelsea, not far from the High Line (sort of like NYC’s Beltline, but with actually interesting stuff). In other words, a pretty high demand area in a city with rental vacancy rate of around 1% (in Manhattan anyway).

Rents there are scary, though. I had a 480 sq ft railroad apartment in Manhattan for the low, low price of $1600/mo. from 2004-2006. Hooray for rent controls and restricting development skewing the market.

Doug Deal November 30, 2012 at 2:22 pm

It sure is a trend. I had the very same idea 10 years ago when housing prices were surging for something called Condo-minimums for young single people in expensive urban areas. Basically 200 ft^2 apartment style houses.

Plus they have had 130 ft^2 apartments in Paris for a long time. And you know Japan must already have something like this.

http://youtu.be/MtsOQz2I09g?t=1m6s

Baker November 30, 2012 at 3:02 pm

Wow.

“In Kelo, the local government made an ill-informed real estate decision, but since the nation as a whole did the same thing right about that time, I won’t excoriate them for it. ”

Except for poor Susette Kelo who didn’t want to sell. The difference is the local GOVT made that decision, they don’t have to pay for the poor decision, Ms. Kelo does. “The nation as a whole” has had to pay terrible consequences for dumb real estate moves, as they should (it should’ve been worse but the bailouts lessened the blow to certain folks) because “the nation as a whole” implies the public at large, not the Govt.

Mike Hassinger November 30, 2012 at 4:53 pm

Finally. Thank you. +1

Stefan November 30, 2012 at 5:04 pm

I am not suggesting that Kelo was decided correctly, just that it can be argued that what was achieved are the societal goals of the free market. And you are right, the local government isn’t really who paid the price there, it was the local developer.

Baker November 30, 2012 at 6:31 pm

But the very fact that the govt took it means it was not “free market”

Stefan November 30, 2012 at 11:58 pm

And that’s why free, in the argument above, was in quotes. That said though, the entire idea of the market is that using the government to take it through eminent domain is just a transactional cost, an extraordinary one, to be sure, but it is merely the instrument of transfer. What you are upset about is that the transfer occurred despite her desire not to have her property transferred. Unfortunately, that’s not the social goal the free market serves, which is, and I’ll quote myself above to “ensure that those assets are either consumed by the persons who value their consumption most highly or put to the use that will eventually yield the highest possible total social sum of consumer satisfaction (or willingness to pay)”.

Baker December 1, 2012 at 11:52 am

I’m upset that the transfer was not to build a road or a rail line or an army base, but instead was supposed to be transferred to a private company to bring in more tax revenue. That’s way outside the lines what eminent domain was meant for.

The government is there to ensure contracts are enforced, thieves don’t run wild in the streets, and fires can be put out. Not to decide what projects might bring in the most tax revenue that “yields the highest possible total…satisfaction”.

The market decides that and since Ms. Kelo didn’t want to sell, her property becoming part of that total satisfaction becomes “not possible”. Government is meant to be outside the market, not a part of it…that is the essential difference between a conservative and (the American definition of) a liberal.

Stefan November 30, 2012 at 5:05 pm

oh and don’t ignore this line of mine above “You are correct about Kelo, though, and I feel for those folks.”

benevolus November 30, 2012 at 6:21 pm

Less sinister than ALEC.

Sherena Arrington November 30, 2012 at 8:59 pm

Stefan, the Kelo decision opened the door for governments to utilize economic development as a rationale for eminent domain takings with the caveat that such takings adhere to an integrated development plan such as the one in place in New London, CT. This new “economic” use is a far cry from the 5th Amendment’s public use. This new interpretation allows government to take property through the power of eminent domain and then convey that property to another private owner for the purpose of economic development. Why? Because in the eyes of the “government,” the highest best use of the property is merely economic. The highest best use to the property owner was something totally different, a nice home, a good neighborhood perhaps, a scenic environment. The Kelo decision has nothing to do with the free market, or as you say, “the societal goals” of the free market, quite the opposite. In a free market, a property owner has the right to define the highest best use for their own personal property or to use it for something that is not even the highest best use. It is their choice how to use their property, except that society does have to address “harmful uses of property” in its police powers. Even so, that does not automatically mean property must be condemned and the right of inheritance abrogated.

The constitutional term, “public use,” meant something which could be readily defined in the past, prior to the legal changes in our American system which began to occur early in the 1900s. Although the legal pragmatists and the social utilitarians may have won over the legal system to their views, it was not always the case. Public use meant that the public had to use something that was under government ownership and control or as common carriers for public use, such as toll roads and railroads, or for sharing natural resources, such as water in irrigation districts. Now, ever since the decision in Berman v. Parker (1954), blight became a reason for condemnation so that “redevelopment” could occur. Thus, suddenly “public use” became “public benefit” or “public purpose.” Property rights were once considered sacred rights. Those who understand John Locke understand that without property rights, people cannot have the means to support life nor liberty.

Our Georgia courts understood the term “public use” to mean what it had always historically meant and understood the true nature of property rights. Here is a quote for the 1953 Johnson case.

The Johnson Court, interpreting the public use clause of the 1945 Georgia Constitution, stated: “[p]ublic use means just what it says and means that the power of eminent domain can never be exercised to acquire property to be used by private individuals solely for private use and private gain.” The Court further stated: “[t]he object is to clear away slum or blighted areas and then to have the property redeveloped by private individuals for private purposes in such manner as the city and the Housing Authority determine to be best. The power of eminent domain is to be exercised to accomplish this result. The property is to be sold to people who could have no interest in acquiring the property other than as a means to make money. If the property of one individual can be taken from another for this purpose, where does the power of eminent domain stop? . . . It is argued that the legislation should be sustained for the reason that the public will be benefited. Maybe so, but we can not subscribe to the doctrine that the power of eminent domain may be resorted to and a person deprived of his property every time there may be some public benefit resulting. To so hold would be to cut the very foundation from under the sacred right to own property. One of the benefits which it is urged will result is that it would help to meet and solve the public problem of juvenile delinquency. We think juvenile delinquency exists on both sides of the railroad tracks and, if this should be sufficient reason for the use of the power of eminent domain, some of the most exclusive residential sections of our cities could be razed to make room for industrial development.”

Stefan December 1, 2012 at 12:32 am

And I totally agree with the assertion of the Johnson court, and I think it is bit much to say Kelo opened the door, I think it assured a door that was already opened would stay open. In fact, Kelo quotes a 1984 case, Midkiff, 467 U.S., at 245, saying that this “Court long ago rejected any literal requirement that condemned property be put into use for the … public.”

And to say Kelo has nothing to do with the free market is clearly wrong. Once again, I think the court got it wrong, but the outcome is consistent with the goals of the free market, though the means to effectuate it is not. However, I think an argument can be made that eminent domain used to transfer to developers is very expensive for the developer in terms of secondary costs, it would only be attempted if there were a great gulf between its current value and its value to the developer. So it is a free market force that causes eminent domain to be used.

So the only real question to be answered here is, in the battle of individual property rights versus societal goals, where do we draw the line? Obviously we all agree that fair market value should be paid – I don’t see anyone here arguing that the result in Loretto v. Telepropter Manhattan CATV (or whatever it was called) should have been that the defendant couldn’t run the cables, that was taken as a given by everybody. And nobody seems to question that the government can do some things that effect the individual property value.

So by that analysis, you are ok with partial deprivations in favor of private industry, but only permanent deprivation if the land is going to the government.

So here’s a question then, if you are ok with use of eminent domain for a road, are you ok with its use for a toll road run by a private company for profit?

What about to build a prison that would then be privately run?

Harry December 1, 2012 at 8:41 am

What about to build a Walmart?

IndyInjun December 2, 2012 at 9:36 am

No, they have been hard at work using Agenda 21 sloganeering like “sustainable development”, “smart growth,” and such. The so-called “conservative,” GOP dominated counties are the worst. Over here they held “stakeholder” meetings to which only the bureaucrats were invited. Real STAKEHOLDERS – the landowners – were not invited.

Harry December 1, 2012 at 8:47 am

Whenever the wall between private and public is impinged, there is a proclivity to reduction of free market forces and increase in corruption.

IndyInjun December 2, 2012 at 9:39 am

Exactly, those with hands on the levers of power can use these land use rules to ‘steer’ a prize development from the lands of the unconnected to those who are connected, or worse, to ban a development that the market would bring in.

I went to war over this stuff and I know pretty damned well how nefarious these things are.

mountainpass November 30, 2012 at 10:44 pm

Yall want to see private property rights thrown out the window, check out my county’s EMO:

Sec. 22-34. – Powers during an emergency or disaster.

(2)
Seizing or taking for temporary use, any private property for the protection of the public;

(3)
Selling, lending, giving, or distributing all or any such property or supplies among the inhabitants of the county and maintaining a strict accounting of property or supplies distributed and for funds received for such property or supplies; and

Sherena Arrington December 2, 2012 at 3:30 pm

Stefan,

We disagree about the free market concept in this Kelo case. Had there been a free market, the condemnation would not have occured. Free market policies do not rely upon the coercive arm of government to do its work for them. In a true free market approach, government sets the rules that require fair play on both sides, but it does not require a forced sale against someone’s will. In a free market, government is the umpire, not the player and not the coach picking sides.

You mention the cable company case, but again, these are treated as other utilities. They are regulated industries, like railroads, power companies, etc… This is totally different from something like a pharmaceutical company coming into New London and getting property through eminent domain.

As for Midkiff, if you want specifics, please see the rather detailed section I’ve added below for you.

As for toll roads run by private companies, it depends on whether the government itself is setting up a situation which creates a monopoly by that company. If there is no monopoly and people have a free choice to drive on roads that get them to their destinations without going on the toll road, then a toll road could pass muster if it is truly necessary for the public use. The public would be using it, which does meet the definition of public use. However, the contract with the private company and the government cannot be perpetual, and the company cannot have full control over the rates and must be accountable to the public. In this regard, it would be treated much like utility companies are treated.

Regarding prisons, again, prisons are a governmental function. Just because they would be run by a private company does not negate the fact that in rare cases eminent domain may be required for the State or a local governmental entity to build a jail or a prison. However, in these types of cases, a jail’s location is much easier to obtain without the use of eminent domain than would be a road that has a specific path it must cross.

Extra context for your mention of Midkiff – see following section:

In both cases (Berman as well as Midkiff), the Court was allowing remedy for affirmative harm that the Court believed to exist. In the case of Berman, it was for slum clearance and in the case of Midkiff, it was for a monopoly of land ownership. As Justice Sandra Day O’Connor explained in her Kelo dissent:

“…in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. … In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public — such as increased tax revenue, more jobs, maybe even aesthetic pleasure.”

Justice O’Connor then made the point that the language in Berman and the language she wrote in the Midkiff decision mistakenly equated the police powers of regulation with the public use doctrine. Justice Clarence Thomas set forth the problem in even clearer terms. He stated:

“More fundamentally, Berman and Midkiff erred by equating the eminent domain power with the police power of States . . . Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123 U.S. 623, 668-669 (1887), in sharp contrast to the takings power, which has always required compensation . . . The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power . . . In Berman, for example, if the slums at issue were truly “blighted,” then state nuisance Law… not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States’ police power conflates these two categories.”

Justice Thomas pointed out the historical context of the Public Use clause and its purpose. Calling upon the Kent Commentaries on American Law of 1827 and on William Blackstone’s legal writings relied upon by the Founders during the Founding Era, Justice Thomas stated the following:

“The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain…. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property…. Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. … The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking. The Constitution’s common-law background reinforces this understanding. The common law provided an express method of eliminating uses of land that adversely impacted the public welfare; nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of nuisance from the power of eminent domain…. Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit.”

Blackstone stated, “So great …is the regard of the law for private property,” he explained, “that it will not authorize the least violation of it; no, not even for the general good of the whole community.” … The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.” Blackstone is the standard our courts should still recognize.

But beyond ignoring the context of history and the context of its own precedent cases, the Kelo majority decision also expanded the reasoning of the language it borrowed from the majority opinions. For example, as you have mentioned, Kelo quoted Midkiff, “The Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Void of context, the Kelo decision used this quote to justify an economic purpose of a private nature. The background for this Midkiff statement was Rindge Co. v. Los Angeles, 262 U.S., at 707 and Block v. Hirsh, 256 U.S., at 155. The following context of these two cases highlights the gross misapplication of how the Midkiff language was used in the Kelo reasoning of the majority.

For justification of the aforementioned statement, “The Court long ago rejected any literal requirement that condemned property be put into use for the general public,” Midkiff had pulled from the Rindge case the following quote: “It is not essential that the entire community, nor even any considerable portion, . . . directly enjoy or participate in any improvement in order [for it] to constitute a public use.” But, the context of Rindge reveals that the California Legislature took property along the coast to build a road. Since the road was along the rugged coastline, it admittedly was not going to be used by the vast public, but it was open to the public at all times.

The borrowed language from Block v. Hirsh asserted: “[What] in its immediate aspect [is] only a private transaction may . . . be raised by its class or character to a public affair.” In this case, the context was World War I. Congress had passed a law, limited to two years, to help ensure the availability of rentals in the District of Columbia. Landlords were not deprived of their real property. They just could not enforce contracts terminating renters during that time period.

Stefan December 3, 2012 at 4:19 pm

I think we agree on much on much of what you are saying, but we disagree on some key points. First, I see Kelo as merely an extension of what was already a gradual lessening of the minimum requirements for when eminent domain can be used. You see it as a huge shift in the analysis. Fine by me, doesn’t really make a difference.

We both seem to think the outcome was harsh.

As to the free market. You keep saying that this was not a free market transaction. I totally agree, but that isn’t the point at all. What I said was, the outcome was consistent with the goals of the free market. I went on to say, that greater the disparity in price evaluations (between market price and buyer’s perceived value) the more transactional force will be used. Seen that way, eminent domain was just the path of least resistance as water sought its own level. Equilibrium was achieved, though through non-market means.

And as for when eminent domain can be used, if you are okay with it being used for a private toll road (with limitations, I saw) or a private prison (also with limitations) its not a big leap to say that it can be used for, say, a supermarket, if the area has no place for people to buy food, or a factory, if the area has no place for people to work. Certainly feeding people and employing them has a public purpose, do you agree?

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