Balkinization: The Grasping Hand: An Interview with Ilya Somin, Part Two

The Grasping Hand: An Interview with Ilya Somin, Part Two

This is part two of a two-part interview with Ilya Somin about his new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015). Part One appears here.

JB: Many people will assume that there is an originalist case against government taking property for private uses. But a really interesting feature of your book is that you make a living constitutionalist case against Kelo as well. That may surprise people who identify living constitutionalism with post-New Deal judicial restraint on issues of economic and property rights. What is the book's message for living constitutionalists?

Ilya Somin: It is indeed true that many living constitutionalists oppose all but the most minimal judicial protection for property rights and economic liberties. But that conclusion is not required by the logic of living constitutionalism, itself. Quite the opposite, in fact, especially in this case.

For example, one of the most prominent versions of living constitutionalism is “representation-reinforcement,” the idea that judicial review should be used to protect “discrete and insular minorities” who lack the influence to protect themselves in the political process. Historically, most of the victims of blight and economic development takings licensed by a broad interpretation of public use are poor, racial minorities, and others lacking in political power. Most of the millions of people forcibly displaced by eminent domain since the Supreme Court endorsed a broad definition of public use in 1954, fall into those categories.

Many of those displaced by eminent domain end up having to leave the community entirely, and so are not even around to vote against the politicians that took their homes, at the next election. In that respect, they are even more disadvantaged in the political process than many of the groups we more traditionally associate with representation-reinforcement.

In the book, I explain why Kelo and its precursors should be rejected under several other well-known versions of living constitution theory, as well. I also give what I think is the most thorough explanation to date of why Kelo is wrong from the standpoint of originalism, incorporating many recent innovations in originalist constitutional theory.

JB: You also point out that several liberal groups and groups that traditionally defend the interests of minorities opposed New London in the litigation. What were their concerns about eminent domain?

Ilya Somin: Several leading liberal groups and activists filed amicus briefs supporting the property owners in Kelo, or spoke out against the decision. They included the NAACP, the Southern Christian Leadership Conference, and Ralph Nader, among others Their opposition was motivated by the reality that blight and economic development takings tend to target the poor and racial minorities, often for the benefit of politically influential business interests. As Hilary Shelton of the NAACP put it in testimony before the Senate Judiciary Committee, “allowing municipalities to pursue eminent domain for private economic development [has] … a disparate impact on African Americans and other minorities.” For example, the urban renewal takings that Jane Jacobs fought against were often referred to as “Negro removal.” While overt racism is rarely a factor in more recent condemnations of this type, the minority poor are still disproportionately affected, in part because their relative lack of political influence makes them easy targets.

JB: It struck me in reading your book that the use of eminent domain for private development has a different political valence from many other constitutional defenses of economic liberty. The people raising the constitutional claims were individual homeowners, while large business interests were mostly allied with city planners and government officials on the other side. Do you agree?

Ilya Somin: To some extent. As I stress in the book, most of the people forcibly displaced by economic development takings are politically weak homeowners, renters, and small businesses. While it would be an overstatement to say that big business interests generally support such condemnations, some of them are clearly among the beneficiaries, while the others are at least relatively unlikely to have their land condemned. The National Federation of Independent Business, the leading national small business group, has been active in opposing Kelo, while big business groups usually either ignore the issue, or even support economic development takings – as do some “pro-business” Republicans, such as former Mississippi governor and Republican National Committee Chair Haley Barbour.

That said, many other constitutional property rights and economic liberties cases also involve regulations that harm homeowners, consumers, or small businesses for the benefit of the politically connected. For example, the Institute for Justice, which litigated the Kelo case, also challenges restrictive licensing laws that make it difficult for the poor to enter such professions as interior decorating, serving as a tour guide, and even African hair-braiding – often for the purpose of protecting politically influential incumbents against competition.

JB: The book also features a popular constitutionalist take on Kelo. What was the public reaction to Kelo? To what extent did people object to the decision on constitutional grounds as well as policy grounds?

Ilya Somin: Polls showed that over 80 percent of the public oppose the Kelo decision, and this opposition cuts across racial, ideological, partisan, and gender lines. Since many of these polls asked about respondents’ opinions on the Supreme Court decision, and not simply about the policy of condemning property for “economic development,” it is likely that the opposition was on constitutional grounds, as well as policy.

Popular constitutionalists typically cite the civil rights movement, the feminist movement, the gun rights movement, and – most recently – the gay rights movement as examples of popular constitutionalist mobilization that achieved broad enough support to justify reshaping constitutional doctrine to meet their concerns. But the opposition to Kelo and economic development takings was actually even broader and more widespread than the support achieved by any of these movements. If there ever was a case that should be overturned based on popular constitutionalism, it is this one.

Admittedly, many of the ordinary people opposed to Kelo probably do not rigorously distinguish between constitutional and policy considerations, and even more probably don’t know much about the legal issues involved. But, given the ubiquity of political ignorance, that is also true of many adherents of every other popular constitutional movement.

I am not a popular constitutionalist myself, and I don’t believe that the popular opposition to Kelo does much to prove that the ruling was wrong. But that opposition is surely relevant from the standpoint of popular constitutionalism.

JB: Popular views about the Constitution often affect constitutional law through judicial appointments as well as through litigation. Has either of the two major political parties made overturning or modifying Kelo an important agenda item in judicial appointments?

Ilya Somin: Politicians in both parties have denounced Kelo. But so far, neither has made it a major focus of judicial confirmation battles. However, I did get called on to testify on public use issues at the Senate confirmation hearings for Justice Sonia Sotomayor (who had been part of a panel that made a very dubious post-Kelo public use decision while serving as a lower court judge). In and of itself, this wasn’t all that significant. But it was the first time in many years (possibly ever) that a witness at a Supreme Court confirmation hearing had been called on to testify specifically about property rights issues. That would not have happened before Kelo.

When and if there is another Republican president, it is very possible that property rights issues – including public use – will play a bigger role in screening potential judicial nominees than in the past. Many Republicans – particularly more libertarian-leaning ones – were and are angry about the role of GOP-nominated Supreme Court justices in the Kelo majority (most notably Justice Stevens, author of the majority opinion, and Justice Kennedy, author of a crucial swing-vote concurrence).

JB: Do you think that the state courts construing their own constitutions have responded in a helpful way to the Kelo decision?

Ilya Somin: For the most part, yes. The state supreme courts of Ohio, Oklahoma, and South Dakota have all repudiated Kelo as a guide to the interpretation of their state constitutions, ruling that “economic development” takings are banned by their respective state public use clauses. Several other state supreme courts have rejected important elements of Kelo, even if they have not decided the economic development question directly.

This generally hostile reception contrasts with the way many state supreme courts in the 1950s and 60s quickly adopted Berman v. Parker – the 1954 case where the Supreme Court first ruled that almost anything can qualify as a public use - as a model for their state constitutional jurisprudence. It is a further sign that the onetime consensus in favor of an ultrabroad interpretation of public use has broken down.

JB: Your book concludes that the post-Kelo legislative reforms didn't go far enough. Why do you think that is so? And what should be done in the future?

Ilya Somin: Forty-five states have enacted eminent domain reform laws in the wake of Kelo – more state legislation than has ever been adopted in response to any other Supreme Court decision. There has been major progress in many of these states, such as Arizona, Florida, and Pennsylvania. But a majority of the new laws only pretend to forbid economic development takings, while in reality allowing them to continue under other names. Usually, they do this by banning economic development takings, while simultaneously permitting “blight” condemnations. And they define blight so broadly that almost any area qualifies.

Even most of those states that enacted relatively effective reforms still permit condemnations for private development in areas that are genuinely blighted, in the lay sense of the term. That, too, is contrary to the Public Use Clause of the Fifth Amendment, and tends to harm residents of poor and minority neighborhoods. Urban blight is a genuine problem. But there are far better solutions for it than the use of eminent domain. We don’t need to condemn poor neighborhood in order to save them.

Many scholars have proposed limited reforms that would limit the harm caused by blight and economic development takings without banning them completely. I think several of these ideas (which I review in Chapter 8), have merit. But none are likely to be as effective as a categorical ban in curtailing eminent domain abuse and protecting our constitutional rights.

Posted 9:00 AM by JB [link]