Still more on Kelo

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