4th Point, Meet Head

Over at Dean Esmay’s blog, I find a hilarious little screed about how conservatives should just roll over and die because eminent domain is well-established and not a bad thing. I have a sneaking suspicion that if I were to convince the city council to condemn Dean’s house as "blighted" and ED the joint to give to a developer, he might see things differently. Hey, it’s not like it really needs to be a public use or anything, right, Dean?

As always, I preface my substantive points with a disclaimer: I think eminent domain is a hideous abomination and should be stripped out of the law. I can go on about this at length, but it would probably bore the crap out of most people. The argument that "there is no other way to get things done" has never been particularly persuasive to me. We live in a country where we ask for, and get, people to volunteer to die to protect and defend an idea. I tend to think we can get people to agree to lesser sacrifices in the name of the public good.

Anyhow, Dean’s argument seems to be three-fold. One is the somewhat bizarre assertion that because it exists in law going back to the Magna Carta we should realize that the power exists and isn’t subject to question. Nice straw man, Dean. Nobody doubts the existence of the power of eminent domain. Only me and the rest of the dogmatic property rights crowd are arguing for it to be eviscerated. Everybody else certainly can question what the limits are, and what they should be. By the way, referencing what the Magna Carta says is not a useful argument. While interesting for historical background in some cases, it’s about as relevant to a discussion of what the limits of government power should be in 2005 as a velociraptor skull is to a discussion of what I should feed my pet turtle.

Dean’s major argument seems to be the idea that because courts have consistently granted municipalities greater and greater leeway in the meaning of the phrase "public use", we should all just sit back and shut up. After all, the law is a complicated thing and I’m too dumb to understand the meaning of "public use". There might not be a bright-line test for public use, but an office park for Pfizer, a condo development, or a yacht club for millionaires sure as hell don’t qualify. The idea that we should allow immoral practices because they are validated by the courts and have extensive historical use is dubious at best and completely insane at worst.

Dean’s final bit of nonsense is the idea that the issue shouldn’t be in the courts. After all, our lawmakers and elected officials can handle the problem. So when the next restriction is written into law, a following set of politicians pushes the boundaries, and the courts roll over and acquiesce, what should we do? Tell whoever got kicked out so the next corporation can get rich that we’ll elect someone not corrupt in the fall? The courts are supposed to decide things in accordance with the law and some larger sense of justice where the law is unclear. The courts have become so divorced from reality a plain construction like "public use" can be interpreted to mean "possibly having some benefit to the government at some point in the future". Conservatives aren't entitled to get upset about this, according to Dean. After all, it's mentioned in the Constitution! As is slavery, so launch the ships and start up the markets again, Dean.

I think what Dean simply fails to grasp, and some of his commenters point out quite ably, is that Kelo removed any restrictions on the term "public use" and effectively wrote it out of the law.

I’ve been consistently amused by the fact that conservatives and libertarians were the only people that really got upset about the Kelo decision. Liberals were either fine with it, or gave a kind of pro-forma objection. Dean, who claims to be "defending the liberal tradition", finds the idea that there are no meaningful limits on the government’s power of eminent domain just peachy. At this point, I just have to ask: what liberal tradition consistently expands the power of the government at the expense of the governed while claiming it’s for the public good? I can only think of one.

H/t to Jeff Soyer.


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