John O'Callaghan, friend-of-MOJ, offers the following reaction to my ruminations on Kelo. I'll respond later after I've had a chance to think about his comments:
"I appreciated your thoughtful comments on in your MOJ post on the Supreme Court case Kelo v. New London. They personalize the situation very well. My father was from Philly, and I have an uncle in Connecticut, so I can picture what you described. I thought, however, that to a certain extent you might be trading in a too strong contrast between the issue of property rights and community. No doubt there are different ways in which we can think about the nature of property and its relation to human persons. But I think it might be a mistake to see the question of property as separable from the question of community. It might well be the case that ona proper understanding of property as the fruits of one's labors, and ultimately an expression of human creativity, that some sort of basic, though not inalienable, property rights are necessary conditions forsecuring stable communities. These are of course complicated questions,involving issues of human social psychology, economics, and politics. But we do need material goods to sustain us. And those material goods must be produced and cared for by someone. It is at least plausible to argue that they are best cared for by those who create and produce them. My ability tomake certain goods conducive to your flourishing, say food, clothing,education, and so on. promotes social interaction with you because of your ability to produce goods conducive to my flourishing, say a home, books, hardware, and so. Economic interaction need not be conceived of as external to the human good, but one necessary part of it. When we engage in such economic exchange of property equitably, with a concern for each other's good, not simply our own, we develop various moral and political virtues like justice, temperance, and prudence. When we care for our homes we develop virtues of friendship with our neighbors, stewardship for those who will occupy the home in future generations, and the virtues associated with caring for our families. Even religious orders genuinely committed to voluntary poverty depend upon the property of others to sustain them, which giving of private property develops the theological virtue of charity. And the principle of subsidiarity is always a check against placing these responsibilities too quickly in the hands of the state, rather than private ownership. I think this is particularly the case when we think of small scale production and ownership. The notion of property involved here may be somewhat distant from the notions of property that typically animate our current large scale free market capitalism. But in this particular case, it would seem that those who lost the court case come closest to representing this other possible notion of property. The very fact that they do not want to sell it signifies that their notion of property is distinct from the notion of property as an easily exchanged commodity with little or no connection to one's sense of one self and one's community.
Care for one's own property in a neighborhood or community may actually bind one to one's community. Homeowners do typically commit more to the upkeep and health of their neighborhoods than do renters, particularly when they are bound to those homes by ties of family, and the history of their community. Small shopkeepers do tend to want to improve the streets upon which they sell their goods, and care about how developments in the neighborhood affect their businesses. And damnit, I want a hardware store that employs people who can help me figure out what's wrong with my oven,tell me just what part I need! Sadly, as you note, this sense of property and place can at times take a very narrow minded turn. But it isn't clear that the answer to such narrow mindedness is to reject the importance of small and moderate ownership of property to one's sense of belonging to the community. Notice that one of the results of white flight is that those who went to the suburbs quite often utterly failed to form stable and lasting communities because of their tenuous relationship to their homes. In many instances,the 2nd and now 3rd generations of suburbanites have almost no connection to their houses and thus the suburban neighborhoods they inhabit, as the phenomenon continues to grow of always trading up for bigger and better, and never staying in a home more than perhaps 7 years to reap the maximum profit against the minimum investment in the home. Developers now actually build starter communities for the first time homebuyer, secondary communities for the homebuyer leaving the starter for his or her second purchase, and the endpoint community for those who have made it, only to then build retirement communities for those who have gone beyond the endpoint. With our population, how else is it that we can sustain millions and millions of units of new home construction every year? There is no way to develop a stable community when everyone is moving every 7-10 years, or less. On the other hand, the supposed urban renewal that is often promoted in our cities does not replace community with community. Very often it simply replaces old community with new shops, and when it builds housing it is housing only very wealth singles and married couples with no kids can afford to enjoy. So I'm not sure that the issue has to be cashed out in terms of propertyversus community. But perhaps you weren't suggesting anything as strong asI may be reading in to you. I wonder if part of your description wasn't actually arguing that the areacounted as a "blighted" area. But on the assumption that it didn't count as blighted, here are some thoughts I had on what was decided yesterday. I forone do not believe in any sort of absolute property rights. I also believein the principle of eminent domain. And of course I am no constitutionalscholar, so I can't say much about the constitutional issues here. But thenotions of "public benefit" and "purpose" and extraordinarily more broad andplastic than any ordinary meaning of "public use," and for that reason, Ithink quite dangerous. What aspects of our lives wouldn't count as bearingupon questions of public benefit, particularly public benefit allied with large scale corporate interests?What I find very disturbing about the resolution of this case is that local governments in this respect become little more than glorified real estateagents in a private transfer of property in which one of the private parties is forced against his or her will to sell to another private party. But the agent here only represents the buyer. Economically, won't the involvement of the government on the part of the buyer actually suppress any genuine evaluation of what counts as a "fair market value?" If I know that the seller is going to be forced to sell to me, I know that I need not offer as much as I otherwise would. And other market interests will take that consideration into account as well, in their judgments as to the value of the property. Thus "fair market value" will be lower than it otherwise would be without the government acting as the agent for the buyer. Many people worry about the effects of gentrification upon the poor, where the engine of the gentrification is driven by free market forces. Here we will see the effects of gentrification upon people who may not be the poorest of the poor, and yet have little economic resources other than their small bitof property. The engine of gentrification will still be free market forces.The difference now will be that government will not facilitate the working of the market from the outside, attempting to guarantee principles of equity in exchange, but will in fact be little more than the instrument of one of the forces in the market, in particular the instrument, as Justice O'Connor argued, of the most powerful force within the market. Theoretically the dilemma seems to be that a) under a rubric of "public benefit" there is nothing at all that can count as "private" except the most powerful economic forces in a community, and b) the one thing that we all take to be unquestionably public, government, ceases to be public because it is nothing more than the instrument of those private economic forces, exploiting and providing no protection for the weak because it doesn't work for the weak. "If justice be disregarded, what is a king but a mighty pimp?Since what is a pimp but a little king?" (With apologies to St. Augustine, De civitate dei, IV, #4) Some of course would tell me to wake up and smell the roses; that's the normal state of free market capitalism. But I've never bought the extreme form of that claim, though today I'm tempted."
John has more, but I thought I would split his post up to save space and allow reactions.
-Mark
MOJ readers may be interested to know that one of the local papers here in Philadelphia's suburbs reported today that our neighbors are upset about Villanova University's plans for building a new athletic facility and law school (on our own land, by the way -- no takings here!). One disgruntled neighbor complained that Villanova used to be just a "little Augustinian school", and now it wants to be "the Notre Dame of the East!" That reminded me of a recent story in Sports Illustrated about football at Notre Dame, where it was reported that "If it were not for football, Notre Dame would be just another nice Catholic college like Villanova." So I like to think of the Golden Dome as "the Villanova of the North-Central Midwest."
-Mark
While we are discussing the Catholic Social Thought perspective on the takings clause, and the connections between property rights and community, it is worth considering whether the Kelo regime threatens religious communities in a particularly acute way. After all, church-owned property is tax-exempt, and Kelo stands for the proposition, it appears, that a desire to increase the tax base is a "public use." Here is a blurb from the Becket Fund for Religious Liberty, making just this point (which they also advanced in an amicus brief in Kelo).
Rick
The folks at SCOTUS Blog assembled an all-star team of commentators and scholars (including one Professor Nicole Stelle Garnett, whose views are, of course, exceedingly wise) who offer their diverse and insightful takes on Kelo, here. Also, here is an essay by our own Professor Bainbridge.
In his post, Mark provides a wonderful picture -- one that is often hard to capture in litigation -- of the community at issue here. (That said, everyone remembers Poletown from first-year Property, right?). He writes:
But when we evaluate government takings for purposes of redevelopment, I don't worry so much about the property rights question. I don't get as emotional about government interference with private property as my friends on the right. While I'm not any fan of government expropriation (hands off my Mini-McMansion on the Main Line, buddy!), I do get quite emotional about the destruction of communities in the name of economic development. . . . So, for me, the problem with takings for the "public" purpose of either redeveloping public infrastructure or promoting private economic development for public benefit is less (or not just) a problem of interfering with property rights than destruction of community.
For what it's worth, I think that my concern for "property rights" and Mark's worries (which I share) about "the destruction of community" are more closely related, or less in opposition, than Mark's post might suggest. It strikes me that the kinds of communities that Mark vividly evokes, and about which he is concerned, and which he thinks (it appears) the Fifth Amendment should be deployed to protect, require for their development, health, and continuation a legal regime that constrains government and protects private property. People don't feel rooted -- they are not, in fact, rooted -- and do not belong, reach out, take chances, identify with, make sacrifices for communities (or so it seems to me) whose survival and existence are subject to little more than the utilitarian calculations of local officials eager to accommodate rent-seeking outsiders.
Mark also refers to the "well-worn groove of the takings argument, which pits the right in private property against the public interest in the taking. I'm proposing what the question might be under Catholic legal theory: is the taking constructive or destructive of community?" Certainly, Catholics -- and Catholic legal theorists -- should think about the effects of legal doctrines, and court decisions, on "community." At the same time -- and I'd appreciate Mark's reaction to this claim -- it is just as much "the question under Catholic legal theory" whether, in a context where government is constrained by a (presumably) valid legal provision (here, the Fifth Amendment), rule-of-law values (which, I think, Catholics should embrace) permit us to endorse the under-compensated taking of private property merely for economic development -- or, to put the matter more bluntly, merely to increase a town's tax base.
At oral argument, the lawyer for New London admitted that the Constitution would permit localities to take Motel 6's, and given the land to the Ritz, whenever such a move would increase tax revenues. A regime that permits this result does not respect private property, and -- therefore -- does not really respect subsidiarity or community.
Rick
Thursday, June 23, 2005
Rob and Rick have a great thread going that focuses very sharply on the question of how we should come out on this case from the perspective of Catholic legal theory -- which is what we're all about here at MOJ. I'm no constitutional scholar or expert on takings, but I've been engaged by this case ever since it developed, because I grew up in New London, and still spend a lot of time there with family. So I'm a bit less theoretical and legalistic about this case than I am about most. I knew the old "Fort" neighborhood well, and had friends and relations who lived there. I've also followed the fortunes of New London redevelopment and the fate of the old neighborhood over the years.
When I think about this case, I see first what is gone -- an old Italian neighborhood, with a few Irish leavening the mix (but very few of what we called "Yankees" back then - and I don't mean Joe DiMaggio). It was at the lower end of the economic scale when I knew it -- mostly in the 50s and 60s -- with its denizens working mostly in nearby factories, warehouses and military bases. By the late 60s that employment was already drying up, but the Fort remained an isolated community of older Italians and Irish, surrounded by neighborhoods victimized by the white flight of the era and populated by very poor African-Americans and, later, Hispanics. As its population continued to age, the neighborhood literally withered with abandoned and boarded up houses becoming more and more common. The adjacent post-industrial area had become a typical brownfield wasteland. The Fort was one of hundreds (or thousands) of once thriving communities bound together by ties of ethnicity, religion (overwhelmingly Catholic) and class. It was the kind of place that striving second and third generation Italian-Americans sought to escape , but there was something real about those places -- they meant something in a way that suburban neighborhoods rarely do. I don't want to get sentimental about a neighborhood that could be amazingly narrow-minded and harsh, but did represent a community that had value and that we have lost. But enough sentimentality.
Similar eighborhoods in New London were destroyed not just by white flight and deindustrialization, but by the brutal "redevelopment" efforts of the 60s -- like Robert Moses' eviscerating of the Bronx, the attempt to destroy Fells Point in Baltimore and so on (the Fort was spared that). Talk about takings! But when we evaluate government takings for purposes of redevelopment, I don't worry so much about the property rights question. I don't get as emotional about government interference with private property as my friends on the right. While I'm not any fan of government expropriation (hands off my Mini-McMansion on the Main Line, buddy!), I do get quite emotional about the destruction of communities in the name of economic development. That sort of reason raises all sorts of Catholic legal theory concerns: destruction of a subsidiary community (a neighborhood); a bureaucratic, rationalistic, technology-driven conception of the common good; a progressivist ideology that devalues human rootedness in community and tradition. So, for me, the problem with takings for the "public" purpose of either redeveloping public infrastructure or promoting private economic development for public benefit is less (or not just) a problem of interfering with property rights than destruction of community.
So -- do I think the Court got it wrong in Kelo? On balance (and perhaps surprisingly), no. By 2005, the Fort was no longer a community. It was mostly dead and gone. Very few people remained -- most had left not because of the new pressure for economic development but because of decades of deindustrialization and white flight in the surrounding areas. I deeply sympathize with the attachment of the few remaining people, mostly elderly Italians (like my own relatives), too frail, frightened or stubborn to move. But if the balance point is not the inviolacy of property rights, but the needs of community (by which I mean something more specific than the common good), then the scales tilt toward the deeply impoverished old city of New London, desperate for tax revenue to support a poor, isolated and highly dependent population. The economic development that did take place was certainly more successful than the disasters of the 60s, and has generated revenues that helped create the possibility of rebuilding community in the New London. (I should note, of course, that there is debate about how much the benefits of the economic development have benefited the citizens of New London - but it's the principle I'm trying to develop here.)
Is what I've suggested here a "legal" argument? Not in comparison to the well-worn groove of the takings argument, which pits the right in private property against the public interest in the taking. I'm proposing what the question might be under Catholic legal theory: is the taking constructive or destructive of community? I guess I'm proposing that as an alternative to Rick's reading of Catholic legal theory as intensifying the property interest by incorporating it within Catholic conceptions of human dignity. I'm not sure I disagree with Rick about that argument - I guess I regard it as incomplete when used in isolation.
-Mark
