Steven Eagle on Eminent Domain

Steven Eagle, George Mason University law school professor, appeared today on C-SPAN’s morning show (39 mins @ 34:50) discussing the origins of eminent domain and its drastic expansion prior to and following the 2005 Kelo decision.  Eagle gave a superb introduction to the abuse of the eminent domain power and the failure of congress to address it. In fact, governments continue to delegate their eminent domain powers to utilities and railroad companies. The callers were eloquent in relating their own abuses from government. Eagle’s Cato Institute monograph on property rights and eminent domain can be found here; his vita  listing books and links to articles is here.

In his Kelo dissent, Justice Thomas notes the originalist scholarship on “public use” and how far current practice deviates from it. He cites the work of Eagle’s colleague, Eric Claeys, “Public Use Limitations and Natural Property Rights.” Thomas also refers to the natural right to own property, I believe the last mention of natural rights in a Supreme Court opinion.  (“The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.””)

Given the interest of developers in eminent domain, it is not entirely surprising that Republicans in California supported the continued existence of redevelopment agencies, while Democrats favored abolishing them (the pro-property rights position). Redevelopment uses eminent domain to develop shiny new property on “blighted” areas. Redevelopment agencies have defined blight as the presence of houses having only one bathroom, no central air conditioning, and only a bedroom or two. The politics of the issue are somewhat complicated by the role of Proposition 13′s limit on property tax increases, but that’s an issue for another day.

Ken Masugi is a Senior Fellow of the Claremont Institute. He teaches in graduate programs in political science for Johns Hopkins University and for the Ashbrook Center of Ashland University. He has edited Interpreting Tocqueville’s Democracy in America, co-edited The Progressive Revolution in Politics and Political Science, and co-authored and co-edited several other books on American politics and political thought. In addition, he has worked ten years in the federal government as a speechwriter and on policy issues, at the Equal Employment Opportunity Commission, where he was a special assistant to Chairman Clarence Thomas, and the Departments of Justice and Labor.

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Comments

  1. John Ashman says

    I remember my liberal friends piling on me about the ugliness of conservative actvist judges increasing the power of eminent domain while I was on a vacation and after much abuse and being more than a little bit upset, I read the decision and who broke in which direction, much to my surprise and vindication.

    Society is truly evolving into “statist” or “anti-statist” and we’re outnumbered 100-1.

  2. John Ashman says

    Might I also suggest a motto for the Judicial Branch that I think applies in virtually any instance?

    “That which increases the power of government is suspect, that which protects the rights of the people is not.”

    The Eminent Domain decision is overflow from the flawed concept of “positive rights” and “negative rights”, which puts the government’s “right” to do “positive” things for the “general Welfare” on par with protecting the natural rights of all individuals.

  3. Kevin R. Hardwick says

    John–

    From the Stanford Encyclopedia of Philosophy:

    “Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one’s life and realize one’s fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.”

    An example–also from the same source:

    “Imagine you are driving a car through town, and you come to a fork in the road. You turn left, but no one was forcing you to go one way or the other. Next you come to a crossroads. You turn right, but no one was preventing you from going left or straight on. There is no traffic to speak of and there are no diversions or police roadblocks. So you seem, as a driver, to be completely free. But this picture of your situation might change quite dramatically if we consider that the reason you went left and then right is that you’re addicted to cigarettes and you’re desperate to get to the tobacconists before it closes. Rather than driving, you feel you are being driven, as your urge to smoke leads you uncontrollably to turn the wheel first to the left and then to the right. Moreover, you’re perfectly aware that your turning right at the crossroads means you’ll probably miss a train that was to take you to an appointment you care about very much. You long to be free of this irrational desire that is not only threatening your longevity but is also stopping you right now from doing what you think you ought to be doing.”

    “This story gives us two contrasting ways of thinking of liberty. On the one hand, one can think of liberty as the absence of obstacles external to the agent. You are free if no one is stopping you from doing whatever you might want to do. In the above story you appear, in this sense, to be free. On the other hand, one can think of liberty as the presence of control on the part of the agent. To be free, you must be self-determined, which is to say that you must be able to control your own destiny in your own interests. In the above story you appear, in this sense, to be unfree: you are not in control of your own destiny, as you are failing to control a passion that you yourself would rather be rid of and which is preventing you from realizing what you recognize to be your true interests. One might say that while on the first view liberty is simply about how many doors are open to the agent, on the second view it is more about going through the right doors for the right reasons.”

    Nothing wrong with the concept–there are any number of circumstances in which the distinction performs useful work. Note that as defined here, the concept is somewhat different than the way you have employed it.

    All best,
    Kevin

    • John Ashman says

      Hi Kevin,

      This may be true in philosophy. I don’t know if it fits how it is [mis]used legally, and I was speaking of positive and negative rights, as taught by the left.

      For instance, as I was taught at least, when government is commanded to protect your rights or privileges, or bending it a bit, bans nicotine in an ironic means of preserving your self-determination, this is a “positive right”. I generally equate a postive right with a privilege due to how it is used. For instance, the “right” to be in a union (often by force or intimidation” would be viewed as a “positive right”. An active government righting wrongs and improving your life as they see it.

      A “negative right” is when government is prohibited from providing you with a privilege. For instance, there is a “negative right” with respect to living in a gun free environment, because of the 2nd Amendment. There is a “negative right” w/respect to living in a religion free environment.

      This is the legal philosophy in which Barack Obama is steeped. This is why he called the Constutition a “bill of negative rights”, as it is not free to act to do whatever it wants to improve your life. That this idea may be come from the idea of “positive liberty” and “negative liberty”, yet twisted to form the basis of government activism and repression is not surprising to me. I had to run the words through a translation matrix every time my professor started babbling about them.

    • John Ashman says

      Actually, let me refine this a bit as my memory is slowly returning.

      A positive right is when the government must do something for you. By those who believe in such things, a positive right is generally a government created right, but is usually not the protection of a natural right.

      A negative right is when the government is prohibited from doing something that may [or may not] be helpful to you. It usually protects a natural right, much to the frustration of the left. Generally starting with ‘Congree shall make no law” or containing “shall not be infringed”.

      IOW, a leftist would see a “positive right” as a means to enact more socialism, while a “negative right” would be a barrier to doing so. A conservative should rightly scratch their head as what they really mean is more like a “positive societal privilege” or a “negative societal privilege”

  4. Kevin R. Hardwick says

    I should add that liberty and rights are not the same thing, although they are of course closely related concepts.

    But even if we use the term as you wish to do, it is still a useful concept. On your terms, for example, the right to trial by jury is a positive liberty, in the sense that the state is obligated to provide me with a jury trial, at no small inconvenience to the several dozen people whose liberty must be constrained in order to provide me with one.

    I would be surprised if anyone here thought that it was an inappropriate infringement of the people’s liberty, when it is necessary for a court to have the service of a pool of jurors.

    • John Ashman says

      Keep in mind that a trial by jury is a “civil right” [euphemism] a “positive right” [euphemism] or “societal privilege” [accurate]. There is no natural right to a trial by jury. Privileges and “positive rights” often come at a cost to others. Natural rights do not.

      This is part of the leftist conflation machine, to put government bestowed privilege on the same playing field as natural rights which government cannot provide.

      You see how government remains jealous of nature and God, do you not?

  5. Kevin R. Hardwick says

    I should add that liberty and rights are not the same thing, although they are of course closely related concepts.

    But even if we use the term as you wish to do, it is still a useful concept. On your terms, for example, the right to trial by jury is a positive liberty, in the sense that the state is obligated to provide me with a jury trial, at no small inconvenience to the several dozen people whose liberty must be constrained in order to provide me with one.

    I would be surprised if anyone here thought that it was an inappropriate infringement of the people’s liberty, when it is necessary for a court to have the service of a pool of jurors.

  6. gabe says

    Kevin:

    Nice exposition. In a nutshell, it seems that you are further defining liberty as reasoned or prudential action; and further asserting that as a result of a positive right (jury trial) no inappropriate infringement of the jurors liberty is involved.
    Agreed!

    But I think John was asserting that as a result of legal positivism, the government (inappropriately) may take action which, while, ostensibly, for the public good infringes upon the liberties and rights of its citizens. Let’s put aside the definitional problem associated with public use vs. public benefit for the moment.
    On second thought, let’s not put that aside. That is the crux of the issue.
    Whereas public use is permissible under the Constitution, public benefit (as elastic a term as one can employ, is it not?) is not, to my mind permissible.
    Would you agree?
    take care
    gabe

    • John Ashman says

      I think you have it Gabe.

      Increased eminent domain power would be seen as a “positive right” because now government is freer to improve your world with a great new casino, and a bigger tax base where your house used to be.

  7. Kevin R. Hardwick says

    Gabe–

    I do not at all disagree–I just don’t want to throw out the concept. The concept is not flawed–I think it performs useful work. But extending it too extensively, as it has been in the past many decades, is certainly problematic.

    In far too much haste,
    Kevin

    • John Ashman says

      I would only disagree that the characterizations of these as “rights” or “liberties” is incredibly flawed and should not be used under any circumstance, that they should be properly referred to as “governmental privilege” or “governmental restriction”

    • gabe says

      Kevin:
      Agreed.
      Now , Professor, go and impart some wisdom into the heads of your students instead of the mush they have been force fed for so many years. Here’s hoping you make a difference in their thinking.

      take care
      gabe

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