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Thursday, June 24, 2010

Five Years after Kelo v. New London: Fight the Capitalist Dogs!

Mr. Woodring at Constant Conservative reminds us of the fifth anniversary of the Supreme Court's Kelo v. New London decision. I agree with my conservative blog colleague that Kelo was an abominable decision, foisted upon us by my fellow liberals on the court who got property rights and eminent domain dead wrong. I am proud that South Dakota was the first state to pass legislation in response to Kelo to outlaw exactly the sort of private-private eminent domain transfer that Kelo upheld. (HB 1080 passed the 2006 Legislature with near unanimity.)

But I suggest that repudiating Kelo v. New London is not strictly Ron Paul libertarianism (a philosophy for which I still harbor sympathies). The City of New London forced homeowners to sell to Pfizer on the promise that Pfizer would build an extravagant research park that would raise property values and swell the city coffers. (Pfizer's promise fell through, and the land transfer was for naught.) In Kelo, the court narrowly held the taxable dollar value of land to supersede other values, like the sense of place, of home, of neighborhood. The court said that if you don't want to act like a capitalist and generate as much wealth as possible with your property, the government should take your property and hand it to a more avid exploiter.

As a homeowner who was able to build a fine lake house for a humble $100,000, amidst more extravagant lakeside temples to consumption worth triple and triple again as much, I found Kelo terrifying. I could easily see the Lake County Commission looking at my cheapskatery and saying, "Heidelberger's house is only generating $1700 in property tax. We know a Sioux Falls developer who can subdivide Heidelberger's land, build two McMansions, and generate ten times the property tax. Evict Heidelberger: we've got roads to fix."

Forcing a property owner to sell that property to another private party who can make more money on that property is akin to forcing construction workers and custodians to move out of town because we want our community to be populated by doctors and lawyers and other wealthy folks who can buy more stuff and generate more sales tax (Vail is like that). Rights should not depend on your economic output. Kelo and the slim liberal majority got that point dead wrong.

Mr. Woodring is right to lament the Kelo decision. I lament it with him. But remember: a rejection of Kelo is a rejection of the capitalist imperative. Some things, like having your home on your terms, are more important than money.

Update 2010.06.25 09:20 CDT: Mr. Woodring continues the discussion! Worth reading!


  1. You are mostly right on this one, and it's refreshing.

    You are wrong, however, on your final point, the jab at "capitalist imperative." Capitalism is not the bad guy here. The bad guy (as it usually is) is government. Government exists primarily to ensure justice in a society; not favoring this entity or that entity, but simply to ensure fairness is done according to the law. That is where government--both at the local level and in the U.S. Supreme Court, was derelict in its obligation to justice.

    Eminent domain is an extremely powerful but sometimes necessary tool of government. Like all government authority, the more powerful it is, the more careful we must be that it is not abused. That is why eminent domain has always (until Kelo) been recognized as restricted to public use of the appropriated land--NOT private ownership. What the government did with Kelo was act as a powerful goon in the employ of one private party over another private party. Had this land been needed for an important public project (a road, a waterway, etc), that would have been within proper use of eminent domain, but to use that powerful tool to award private property to another private entity, and to do so based on the transparently despicable excuse of "more tax loot" is an egregious misuse of government power--not FOR justice, but for INJUSTICE.

    Capitalism had almost nothing to do with it. Capitalism has always been expected to live within the laws of justice in our free country. This was a case of a company intent on taking what it wanted without regard to the wishes of the property owner. They could not have taken this property from the owners under the law, so they got some government thugs in city hall and the U.S. Supreme Court to muscle the property owners for them. This wasn't an expression of capitalism, but thuggish, lawless behavior.

    As always, it is when government leaves behind its obligation to follow the law (with the U.S. Constitution and its limitations on government power being chief of all law) that capitalism is truly allowed to run amok and justice suffers.

  2. Bullcrap, Bob. Government is the bad guy in Kelo only to the extent that it acted as a tool of the greedy Pfizer corporation and put dollar signs over basic rights. Capitalist greed is a bad guy in this story, and you can't avoid that.

    But I'm glad we agree otherwise.

  3. Yes, government failed to protect the innocent and do it's job. Pfizer couldn't have taken that property without the complete complicity of the government.

  4. A rejection of the capitalist imperative superseding individual property rights. You talk my language for once, even if you rail against corporate greed as if that played a central role instead of a peripheral one. Capitalism is just the system that attempts to bend greed to the benefit of society. Greed is a part of human nature and would be there even if capitalism wasn't. Pfizer had no power to kick people off of their own property, only government has that kind of authority.

  5. This could get be banned again6/25/2010 5:47 AM


    Bob is right. the problem is "central planning" of the economy, and that is not free-market capitalism. That is the road to serfdom (read Hayek's book). The Republican's economic development through Big Government is well intended, but wrong headed. But it is also wrong headed to call their plans capitalism. It is collectivism...an ideology and policies that you promote yourself.

    Steve Sibson

  6. O.K., Roger, call it an indictment of the corporate statists, the rich executives who pretend they are capitalists but manipulate and depend on government to get what they want. Government wouldn't ahve taken that land if Pfizer hadn't asked. if we have to have capitalism, I want honest Adam Smith capitalism where the government protects all property holders equally, where rights do not increase with wealth (or the contended potential for earning wealth).

    Kelo exposed the hypocrisyof our system, just like South Dakota's willingness to let TransCanada use eminent domain for its private gain rather than letting the free market work and requiring TransCanada to negotiate fair prices with willing landowners. (And don't tell me, Steve, that the Republicans running South Dakota support the same "collectivism" as I do.)

  7. Collectivism or Liberty6/25/2010 7:04 AM

    "And don't tell me, Steve, that the Republicans running South Dakota support the same "collectivism" as I do."


    Collectivism is collectivism. Liberty is liberty. Pick your ideology.

    Both parties are controlled by the Progressive collectivists. They are only fighting over whose friends get a bigger cut of the government pork.

    Steve Sibson

  8. Seems to me Steve may have a point. Our Constitution (a Liberal Democracy/ i.e. Democratic Republic) with its emphasis on the social contract and the collective will of the people could easily be characterized as a form of Political Collectivism... so much so, that the Founders immediately added the Bill of Rights to make sure that the liberties there were preserved.

    Had they not been added, the "collectivism" of our Constitution would be much more readily apparent. Short of anarchy, there really isn't any system of government that doesn't somehow limit the fundamental "endowment" of personal, individual liberty. No sense arguing with Sibby about that, I recon.

  9. Agreeing with Fleming OH OH6/25/2010 10:52 AM


    Yes the good old Federalist vs anti-Federalist debate.

    Steve Sibson

  10. In my opinion, rejection of the Kelo decision constitutes a rejection of crony capitalism.

    Money itself does not give rise to evil, although the worship of money certainly does.

    If a wolf comes to the door and goes "Mæow," it remains a wolf. Let the home-owner beware.

  11. I can work with that, Stan. It's definitely capitalism gone wrong, a victory of plutocracy over democracy.


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