By EDUARDO M. PEÑALVER
Review of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, by Ilya Somin
University of Chicago Press (2015)
It has been ten years since the Supreme Court decided Kelo v. New London. The case concerned the question whether using eminent domain to take private property from one owner in order to hand it over to a private developer for the purpose of economic development (e.g., creating jobs or increasing property tax revenue) was consistent with the Constitution’s requirement that the government only use its eminent domain power to take private property “for public use.” Earlier Supreme Court cases had – for at least fifty years – held that “public use” means any legitimate public purpose, a broad category that uncontroversially includes economic development. In Kelo, the Court reaffirmed those earlier cases, as most scholars had expected it would. Even though Kelo did not change existing law, media coverage in the days and weeks following the decision helped to stoke an upwelling of popular outrage. Political cartoons portrayed the Kelo majority as (among other things) a modern-day Ku Klux Klan, as a wrecking-ball knocking down a home with the owner still inside, and as a blood-stained butcher hacking the heart out of the Constitution with a cleaver. The case consistently polled with a disapproval rating of over 80%. The anger reached across the political spectrum in a way that – even a decade later – is remarkable.
At the time Kelo came down, Ilya Somin was a junior professor at George Mason Law School and a blogger for the Volokh Conspiracy – the most influential conservative law blog in the country. As a committed libertarian and an up-and-coming scholar of property and constitutional law, Somin was ideally situated to serve both as the leading conservative academic commentator on the case and as a participant in the emerging backlash. Somin’s work on eminent domain has consistently straddled these two worlds of scholarship and property rights advocacy. He has written scores of blog posts on the issue. He has testified before the Senate Judiciary Committee, where he criticized then-Supreme Court nominee Sonia Sotomayor for her vote in a post-Kelo eminent domain case while she was a judge on the Second Circuit. But he has also written several well regarded law review articles on Kelo. And now, in his new book, The Grasping Hand: Kelo v. New London & the Limits of Eminent Domain, Somin offers the most comprehensive review to date both of the case itself and of the various legal reforms the backlash against it has sparked. The book is something of a ten-year retrospective of Somin’s own intellectual engagement with the issue of eminent domain.
As neither a conservative nor a libertarian, I come to the Kelo decision from a very different vantage from Somin’s. (Disclosure: I clerked for Justice John Paul Stevens, who wrote the majority opinion in Kelo and on whom Somin has trained a fair amount of criticism.) But, as Somin notes repeatedly in the book, one of the interesting features of the post-Kelo backlash is the strange political bedfellows that it brought together. The decision, he says, was “condemned by politicians and activists from across the political spectrum ranging from anti-corporate activist Ralph Nader on the left to controversial talk show host Rush Limbaugh on the right.” (p. 137) It was assailed (predictably) by libertarians and conservative property-rights activists, but also (less predictably) by people like Howard Dean and Bernie Sanders, and by groups like the NAACP and the Southern Christian Leadership Conference.
In light of the political ambivalence of the redevelopment takings issue, perhaps it is not surprising that I find a great deal to like in Somin’s book. It is both thoughtful and scholarly. Somin avoids the rhetorical excess characterized by a great deal of the popular commentary on Kelo. His bottom line is that, even though the case was consistent with longstanding precedent, it was wrongly decided because the earlier cases (and therefore Kelo as well) deviate from the original meaning of the Takings Clause. More specifically, because the Takings Clause is understood to apply against the states only through “incorporation” into the Due Process Clause of the Fourteenth Amendment, it deviates from the original meaning of the Takings Clause at the time of the Fourteenth Amendment’s ratification.
Setting aside debates about the merits of originalism itself (and the puzzle of the originalist status of incorporation doctrine), the problem for Somin’s argument, as he frankly acknowledges, is that there is very little evidence concerning what the original public meaning of the Takings Clause actually was in the late nineteenth century. At that time, there was almost no public commentary (by either courts or scholars) about the meaning of the federal Takings Clause. Then, as today, most takings happened at the state and local level. Somin therefore turns to the states’ interpretations of their own (usually similarly worded) constitutions. Painstakingly, Somin works through the caselaw of twenty-five states in the years immediately before and following ratification of the 14th amendment. But, rather than a clearly settled meaning, he finds a diversity of positions. He concludes that a majority of the states embraced a narrow understanding of the eminent domain power inconsistent with the practice of eminent domain to take property from one private owner in order to give it to another private owner for the purpose of economic development. But, pushing in the other direction, he also finds support for a broad view of the eminent domain power in over a third of the states.
Somin describes this array of positions as reflecting a “substantial majority” in favor of a narrow view (p. 44). On the other hand, three-fourths of the states must ratify an amendment to the Constitution, and so the Fourteenth Amendment necessarily depended on the concurrence of a number of states (seven of the original ratifying states, by my count) that adhered to the broad view of the eminent domain power. What an originalist should do with this sort of mixed evidence is an interesting question that Somin does not explore.
Indeed, I had the impression that his heart was not really in the painstaking search for the correct original meaning of the Takings Clause. Behind the scenes, Somin is working with a normative theory about the status and importance of private property rights that frequently slips through the book’s originalist veneer. In other writings, Somin has endorsed what I would describe as a natural-rights, libertarian account of private property and of the power of the state. He backstops this natural rights view with a strongly held belief that the robust protection of private property rights is always welfare enhancing over the long run. Somin does not explicitly rest his argument in this book on these sorts of normative accounts. In a move that mirrors the strategy of the libertarian Institute for Justice, the property rights litigation group that litigated the Kelo case and whose skillful public relations campaign helped stoked the public backlash afterwards, Somin is at pains throughout the book to try to broaden the appeal of his case to people from all different ideological and hermeneutic camps. But he also cannot quite bring himself to ignore normative arguments altogether, and so some of the most interesting (and at times frustrating) parts of the book involve his use of these arguments, which Somin justifies including in the book on the ground that they are relevant to non-originalist readers.
Wearing his non-originalist hat, Somin argues repeatedly that the use of eminent domain for economic development is bad policy. When he calls economic development takings bad policy, he usually means both of two things: (1) that eminent domain for economic development is not (all things considered) cost beneficial and (2) that the costs and benefits of eminent domain for economic development are not fairly distributed. As Somin acknowledges, in a democracy, we do not typically look to unelected federal judges to ferret out unwise policies. But he thinks that this particular bad policy merits judicial intervention because it is the sort that is not likely to be corrected by the political process.
Somin argues that local governments engage in wasteful economic development takings because they are easily captured by politically well-connected developers who reap the benefits of eminent domain. The costs of eminent domain fall disproportionately on the poor, on politically unconnected landowners, and on the disorganized taxpayers whose taxes fund the compensation paid to expropriated landowners. Government actors have little to fear from these groups.
On some theories, wasteful local government behavior of the sort Somin describes would be puzzling. According to William Fischel’s influential “homevoter hypothesis,” for example, individual property owners (“homevoters,” as he calls them) dominate the political process in most local governments. Where this is true, even ignorant homeowners’ interests are protected because cost-ineffective government decisions tend to lead to deteriorating local services or rising property taxes, both of which erode property values. If homevoters are merely attentive to the value of their principal asset (their home), they will punish wasteful government behavior. Knowing this, Fischel argues, local governments are unlikely to engage in wasteful behavior where the cost of that behavior predictably falls on their own citizens, as it would in Somin’s story about foolish redevelopment projects.
Somin does not directly engage Fischel’s work. But Somin’s arguments about the unfair distribution of the costs of economic development takings point towards a response. The key is to recognize the limits of Fischel’s homevoter theory. According to Fischel, homevoters only tend to dominate the political process in smaller, largely suburban municipalities, where the vast majority of voters are similarly situated homeowners. In bigger cities, where interest groups are more heterogeneous, political models necessarily become more complex. In these settings, homevoters do not have as much sway, and government is more susceptible to being captured by powerful interest groups. It is precisely in such larger, urban settings where wasteful economic development takings have been most likely to occur.
The answer to eminent domain abuse, Somin says, is greater legal (particularly constitutional) protection of private owners. “Few, if any, other rights protected by the Bill of Rights have been so completely left to the tender mercies of the very governments that they are intended to protect us against,” he complains (p.3). One reason some legal scholars resist libertarian calls for greater judicial protection of property rights (as contrasted with other kinds of individual rights) is because they think property owners are (as a group) for the most part capable of looking out for their own interests in the rough and tumble of the political process. As Somin plausibly observes, however, not all property owners are created equal. He argues that economic development takings tends to target owners who are “poor and politically weak.” This targeting, as much as anything, explains the unique constellation of interest groups who lined up against Kelo.
In response to the broad popular rejection of Kelo, in the aftermath of the decision, thirty-seven state legislatures enacted laws limiting the power of eminent domain for economic development. A number of other states enacted eminent domain restrictions by popular referenda. Does this response prove the Kelo majority right (and Somin wrong) by showing that the political process was up to the task? Somin does not think so. He dismisses many of the legislative responses by arguing that “the majority of the newly enacted laws are likely to impose few, if any meaningful restrictions on economic development takings.” His basis for making this assertion is an examination of the texts of the statutes and of a number of judicial decisions after Kelo. He is particularly damning of exceptions within the new laws permitting the use of eminent domain to clear “blight,” a term that is nearly as capacious as “economic development.” Using such a blunt methodology, Somin cannot rule out the possibility that other mechanisms may be at work. For instance, the same popular outrage that led to the enactment of those laws may have had a constraining impact on the behavior of government actors. And, of course, courts may interpret even broadly worded statutes in ways that further constrain the use of eminent domain. Somin discusses the 2007 decision by the New Jersey Supreme Court in Gallenthin Realty Develoment, Inc. v. Borough of Paulsboro, which that did just that.
Somin’s argument about the threat of redevelopment takings rests at various points on a series of fundamentally empirical claims about the prevalence of these kinds of takings before and after Kelo, and about the impact of those takings on owners’ perceptions about the security of their property rights. But he does not really offer much by way of evidence. At one point, for instance, he claims that “Detroit’s aggressive use of eminent domain . . . likely made the city’s problems even more severe by destroying neighborhoods and rendering property rights insecure.” (p. 215) In support of this, he cites a blog post by himself in which he simply asserts the same thing. Indeed, at no point does Somin offer a rigorous, empirical assessment of the scale of the problem of economic development takings after Kelo. He is likely correct that most state and local governments continue to have the power – as constitutional and statutory limits are currently interpreted – to take private property at the behest of powerful developers under the capacious rubric of economic development or eliminating “blight.” And some governments have used (and will continue to use) this power in questionable ways. But we are left guessing about the extent of this particular abuse of government power. This is not entirely Somin’s fault – there is not readily available and systematic data about state and local governments’ use of eminent domain. (One reform that property rights groups might get behind is better public disclosure and record-keeping of projects in which eminent domain is used or threatened.) Even if Somin is not to blame, the absence of data makes it much harder for him to succeed in convincing readers (particularly readers not already deeply committed to the libertarian property rights project) that redevelopment takings constitute a grave threat that is immune to political correction.
Despite lingering questions about how pressing a problem this is, the diverse coalition that formed the anti-Kelo backlash demonstrates that there are overlapping concerns that can motivate both property-rights libertarians and those on the left. Both, after all, are concerned when vulnerable individuals suffer from coercive government action at the behest of the powerful and well-connected. How far might this consensus reach? Could it extend beyond the issue of eminent domain reform? The work of the Institute for Justice presents some interesting possibilities. One of its more recent projects focuses on state and local government abuse of the power of civil forefeiture, an issue that (like redevelopment takings) typically pits local governments against isolated and usually working class individuals. The IJ has also done very interesting work on some of the onerous (and, at times, ridiculous) licensing requirements that local governments frequently use to shield favored businesses from competition, such as Chicago’s restrictions on food carts. Another issue around which libertarians and liberals might find common cause is the fight against overly restrictive suburban (and urban) zoning laws that inhibit climate-friendly mixed-use developments and block the construction of affordable housing.
But the prospect for building a diverse left/right coalition around broader property-rights agenda is constrained by a knee-jerk hostility to the rhetoric of property rights from many on the left and by the narrowness of the concern for the poor and politically powerless from those in the libertarian camp. The former may be the result of a tendency to treat all property owners like fat cats, ignoring the ownership aspirations of the very people those on the left want to help. It may also reflect a distrust on the left of the conservative valence of the very institution of private ownership.
The narrowness of libertarian concern for the poor is on full display in Somin’s book. If governments are subject to capture by powerful development interests in the context of economic development takings, the mechanisms by which that capture occurs are likely to manifest themselves in a wide variety of contexts. Larry Bartels has argued that, as economic inequality has increased in recent decades, government at many levels and in many domains has become more responsive to the interest of the rich and less responsive to the interests of the poor and politically powerless. But property rights libertarians are not especially concerned about the ability of the poor and the powerless to defend their interests against the rich and powerful when that abuse is not mediated by their narrow understanding of government coercion or to defend themselves against the government when property rights are not in play. So libertarians do not tend to get exercised about landlord abuse of tenants or bank abuse of foreclosed homeowners, even though both involve “property” and even though the state is often complicit– both by omission and commission – in those abuses.
It is because of the narrowness of the libertarian concern for the poor and the powerless, I suppose, that I am reviewing a book by a libertarian written for the tenth anniversary of the Kelo case instead of a libertarian book on, say, the foreclosure epidemic that followed in the wake of a financial crisis that bankers and captured government regulators helped to cause. Ten years after Kelo, is eminent domain abuse the most pressing problem confronting the poor and politically powerless? Is working on eminent domain abuse a better way to help the poor and politically powerless than, say, fighting for a higher minimum wage or for campaign finance reform or access to civil justice? On one level, these questions suggest a false choice. But people and movements can only take on so many issues at a time. Activism around redevelopment takings comes – in some sense – at the expense of competing priorities.
If, as Bartels suggests, it is growing inequality that lies behind the increasing ease with which the rich and powerful capture government actors – including government actors who abuse the power of eminent domain – is spending time and political capital on eminent domain reform the best use of scarce political capital? Turning to Somin’s call for greater judicial protection of property rights raises even more potential for conflict within the Kelo coalition. If those on the left ultimately hope to protect the poor by going after the issue of economic inequality, entrenching the distribution of wealth by ramping up the constitutional protection of property rights (as Somin favors) may seem (for them) counterproductive. In contrast, the more modest, issue-by-issue approach the Institute for Justice has sometimes pursued may hold promise for future collaboration between the property-rights movement and some on the left.
For much of America’s past, the rhetoric of property rights was the dominant trope for advocates of democratic and egalitarian economic policies. From Thomas Paine, who based his proposal to create an early precursor of Social Security on Locke’s property theory, to the supporters of the Homestead Act, to the early labor movement, the language of property rights has – until recently – been a powerful part of the politics of the American left. The anti-Kelo backlash provides a brief glimpse of what a revived, populist property rights rhetoric might look like. Building on that moment would involve some uncomfortable adjustments by both libertarians and liberals. It would take real effort on both sides. Somin’s intriguing book illustrates both the promise and the challenges of that effort.
EDUARDO M. PEÑALVER is the Allan R. Tessler Dean of Cornell Law School. He writes and teaches about property and land use law. His most recent book, An Introduction to Property Theory, (co-authored with Gregory Alexander), was published in 2012 by Cambridge University Press.