Saturday, June 25, 2005

A Remedy for the Kelo Effect

In the wake of Kelo, the display of outrage among bloggers and blog readers alike has been remarkable. The strong reaction has largely come from, for lack of a better phrase, the non-left. In fact, reaction from the typically vocal Left is conspicuous by its absence. One might expect, me for example, that our collectivist friends would welcome a dilution of property rights, which is of course a delusional proposition. Well, one such lefty, Scott Lemieux, guest blogging for Ezra Klein, (confusing eh?) couldn’t resist minimizing the effect of Kelo by employing a bit of moral equivalence.
The lesson here, again, is that the Constitution does not provide a remedy for every bad public policy. Combining upper-class tax cuts with increased pork-barrel spending, like the current administration is doing, is awful public policy, but it's constitutional, and the same goes for Robert Moses' grandiose road-building schemes. You beat them the way the West Side Stadium was beaten; through politics. Expecting the courts to protect poor property owners by determining which policies are legitimate public interests is a sucker's bet.
While Lemieux’s take is sadly predictable, others of his ilk seem to think that the recent rants have been “inappropriate”. What’s more, the state is viewed as a sort of benign butler with an allergy to totalitarianism. Matthew Yglesias assures us that all is well:
I guess I do turn out to have strong feelings about the inappropriateness of strong feelings about this decision. It seems to me that there's only so outraged one can reasonably get about a decision that, like this one (and like Raich before it), essentially affirms an already-existing rule. If America wasn't a totalitarian dystopia yesterday, then it isn't going to be one tomorrow in light of this ruling. Nothing has changed. Perhaps you think it's bad that nothing has changed, but it's not really the moment to start pulling your hair out. It probably is the moment to start paying closer attention to City Council elections which many people, myself included, tend not to scrutinize much. Those people have real power and it's worth paying attention.
At least Yglesias recognizes that local politicians are the Kleptocrats in the henhouse…but their sights are now set on your house. As a corrective measure, the zombieslayer, in a recent comment, proposed the following solution to Kelo: "I'd love to see someone challenge this by force. It needs to be done. He just stands out there with a shotgun, daring the bulldozers to come onto his property." While that’s certainly the last line of defense, I hope we’re not there yet. No, I think that an intermediate step should be taken. I agree with Stephen Littau, who suggests that a constitutional amendment is in order, as he rightly states: “to protect private property rights”.
With the SCOTUS using their current interpretation of eminent domain, I think amending the constitution is the only answer to reverse this atrocious decision. The language must be clear enough that even Stevens, Ginsberg, and Kennedy can understand; here is my proposed amendment: (the particulars of his proposed amendment can be found here)
It’s clear that our “leaders” are in no way opposed to amending the constitution, as evidenced by their previous asinine attempts in the wrong direction. Yes, I’m speaking of the fact that the House of Representatives approved an amendment that would ban flag desecration, along with a pushing H.J. Res 56 and/or the ironically named "Common Sense Marriage Amendment". So, you want an amendment…ask, and you shall receive. In a comment to this post, Alice mentioned that former CA gubernatorial candidate, State Senator Tom McClintock, has weighed in with his own plan of action:
“The responsibility now falls on the various states to reassert and restore the property rights of their citizens. I am today announcing my intention to introduce an amendment to the California Constitution to restore the original meaning of the property protections in the Bill of Rights. This amendment will require that the government must either own the property it seizes through eminent domain or guarantee the public the legal right to use the property. In addition, it will require that such property must be restored to the original owner or his rightful successor, if the government ceases to use it for the purpose of the eminent domain action.”
Absofreafinlutely! As I’ve argued before, words mean things. Moreover, the protection of Life, Liberty and Property is the primary reason for the existence of the US Constitution and indeed the only justification for the institution of government. Therefore, those that wield power would do well to consider the words of Thomas Jefferson when they seek to capriciously restrict Liberty:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…

Update: A well deserved hat-tip to Lucy Stern and her husband T.F. Stern for pointing out a relevant article in the Houston Chronicle:
Rep. Frank Corte Jr., R-San Antonio, said he would seek "to defend the rights of property owners in Texas" by proposing a state constitutional amendment limiting local powers of eminent domain, or condemnation.