Kelo - A Defense From The Elitists

Besides the basic unjustness of it all (as if that weren’t reason enough), one of the aspects the eminent domain issue that raises its import is the ability it has to “grow” the property rights movement from its traditional base. It allows long-time property rights activists to not only reach to more moderate people (people who might not otherwise understand the “regulatory takings” issue, but really get the problem of government taking property for other private parties), but to reach more hard-core progressives, folks in the environmental community, say, who have no love for big business and supposedly look to stand up for “the little guy” (though we know that’s not usually the case).

With that in mind, I was interested in a debate between John Echeverria, from the Georgetown Environmental Law and Policy Institute, and the Cato Institute’s Roger Pilon. I’ve heard both before, on property rights, but I was intrigued to hear what Echeverria’s take on Kelo would be, given the nationwide reaction.

There’s a part of me that was surprised, and a part of me that was unsurprised. In spite of the clear injustice perpetrated when government takes private property from a small property owner at the behest of another private party, Echeverria’s anti-property rights orthodoxy extended to defending even this. And while I was disappointed, I really should have been surprised at Echeverria’s through-and-through statist views.

But it was an odd defense coming from a learned environmental activist. Let me say at the outset that there was one thing I agreed with Echeverria on – the issue of whether or not Kelo was “radical”. As I’ve written and spoken about for the last few months, Kelo wasn’t a radical decision – that’s part of its problem. Kelo was an affirmation of nearly a century of Supreme Court caselaw. What would have been radical would have been for the High Court to take a principled stand, show some courage, and fight for the right of the 87-year-old woman to live in her own house. It’s a prime example of the problem of judicial decisions being made in a vacuum.

So, Echeverria was right about that. But he missed the boat on a number of things.

First, there was the strange defense of this type of eminent domain as good for the economy and good for jobs. Now, notwithstanding the sheer hypocrisy of someone who advocates for, and whose organization advocates for, the very type of regulations that give America the $1.1 trillion economic drag that has been discussed here in the past (see, “Death by 7,647 Pinpricks” here on the Liberty Blog) trying to defend this injustice on economic terms, this issue is a non-starter.

First of all, small businesses create 60% of the new jobs in America. Condemnation of small businesses is devastating – businesses have relocation costs, costs in starting up from a new location, lost customers, etc.

Second, local economies need to diversify, and not rely on either large, single-unit employers (like a Wal-Mart or factory) or high-end retail and service businesses to grow their economies.

What’s more, there are serious ethical issues to be raised in justifying the violation of individual rights on simple economic grounds. Not to mention the displacement of lower-income families, etc. One of the examples used by Echeverria, for instance, was the building of an auto plant in Mississippi. Sure, there were jobs brought to Mississippi (and one wonders just what sort of hurdles Echeverria’s institute put in that plant’s path), but there were poor minority families and small businesses who lost their homes as a result.

Echeverria also launched a bizarre attack on the Administration for it’s hypocrisy regarding this, among other things, because the President benefited from the use of eminent domain in the building of the new Texas Rangers stadium. I didn’t have the heart to point out that, his post-Kelo rhetoric aside, the President hadn’t been on the “limiting eminent domain” side of things up to the actual Supreme Court decision being made. In point of fact, as discussed here, until some vociferous advocacy on the part of the pro-property rights crowd, the Administration had been planning to file a brief in support of the City of New London and their use of eminent domain in this way (to refresh your memory – the administration didn’t file a brief on the right side. They simply stayed out of the case.)

Finally, and I think this is what angered me, there was Echeverria’s general elitist attitude regarding this, that the families who are displaced for Home Depot are better off. He used the example of one woman he talked to, who simply loves her new home. In other words, if they get their just compensation (which is a big if, John, you and I both know that getting fair market value in condemnation cases is tough.), then they’re going to be happy.

At the outset, there’s the basic issue of choice. John wants us to think that it’s better for government to substitute its judgment as to what’s best for my property for my own. Absent a use which is going to violate someone else’s rights or harm them, then this is hogwash. I bought the property, paid for it, have improved it, and I desire to keep it. If someone else wants it, then they can find some way of inducing me to sell it to them. I don’t need some big brother government saying, “Come on, you don’t really want to keep the house that your parents raised you in.”

Maybe I do. Maybe I have some intangible attachment to that piece of real estate. Maybe I like the idea that my kids and their kids are going to learn to climb the same tree that I did as a child. That some sunny spring afternoon they are going to grab a favorite book and climb to the top of that tree to sit and read in the warm sunlight, as their grandfather did when he was their age.

But for whatever reason, it’s a matter of individual choice.

And in the end, we’re left with the fact that had the private enterprise wanting the property been forced to negotiate with the landowner, then chances are they would have gotten more money. Sure that lady was happy. But she would have been happier had the government stayed out of it and Wal-Mart been forced to negotiate directly with her.

Echeverria was, as usual, calm and charming. But he was also unconvincing. It was the quintessential statist argument for protecting government power. However, it in no way overcame the fact that this is nothing more than elitist injustice, however swaddled in the clothes of economic efficiency.

Oh, and on an unrelated note, Echeverria did take us on one interesting turn. Near the end of the event, he said he had a question for the crowd. Actually, it wasn’t a question –but a comment for my friend and colleague, RJ Smith. One of the points that RJ has raised in the past regarding eminent domain is that one company, Koch Industries (one of the nation’s largest privately-held companies, as well as one of its largest natural gas producers) has never used eminent domain in the acquisition of land for its pipelines. Echeverria raised this factoid, at which point I caught my breath, expecting him to uncover some salacious bit of research proving RJ wrong. On the contrary, Echeverria said that he’d found nothing in his research to demonstrate that it _was_ wrong.

This then led into an attempt on his part to demonstrate some hypocrisy on the part of libertarians because of carve-outs in recent congressional legislation protecting the right of natural gas companies to use eminent domain. It was nothing more than a strawman on his part, though, as it was generally agreed that such a carve out was ill-advised.