Rick Hills and Ilya Somin, two of the most respected Property Professors in the country, raise an interesting conflict as to whether the federal courts are the proper forum for the determination of state acquisitions utilizing the power of eminent domain.
Given this author, Alan Ackerman, as a Michigan and Florida practitioner, one should understand that given the Hathcock decision reversing Poletown and noted in Kelo leads this author to believe a position that the States may control property rights activities within the jurisdiction provides the stronger legal basis.
Realistically, the Fourteen Amendment was enacted to supply protection from state abuse. The abuse related to any rights of property, often decided in such cases as state mis-regulation of railroads in California in the 1880’s and extended out to the irrationality of Lochner years later.
The reality of the situation is one in which States clearly have an opportunity to self-regulate via constitutional amendment or legislative action. The potential to limit the Police Power to only non-economic activities is one which a state may retain. Ilya Somin provides a rational argument supporting the protection being one that is in the federal jurisdiction. However, this writer has a sense that federalism allows States to be the “test tubes” for activity in all the States because the Public Use is subservient to the Police Power because the police power is reserved to the States under the Reserved Powers Clause of the Tenth Amendment. But possibly the right to property use is a federally protected right even though property regulation has always been within the exclusive province of the State.
The two articles are included this and the next blog posting. Below is the Ilya Somin’s discussion. Rick Hills’ was provided in the most recent prior blog posting.
If superior local expertise is not a good justification for federal judicial abdication of responsibility for enforcing other constitutional rights against state governments, it cannot justify tolerating violations of constitutional property rights either. Moreover, as I explained more fully in an article inspired by earlier debates with Hills, federal judicial enforcement of constitutional property rights actually promotes rather than undermines the use of superior local knowledge. When federal courts protect property rights against violation by state and local governments, it is not federal judges, but private property owners who ultimately get to determine the use of the property in question. And, most of the time, property owners both have greater knowledge about their land than government officials, and stronger incentives to use it efficiently. Even if federal judges know less about the property in question than state officials do, property owners are likely to know more than both.
Hills suggests that “public use” constraints on eminent domain, in particular, should be left up to state discretion because the Public Use Clause is “ambiguous.” For reasons I discuss here, there is a strong case for construing “public use” narrowly on both originalist and living constitution grounds. At the very least, “public use” is no more ambiguous than many other broad, general phrases in the Constitution that federal courts enforce all the time, such as “due process,” “equal protection” or “unreasonable searches and seizures.”
Hills also cites Detroit as an example of a city that could benefit from being able to use eminent domain to condemn property for transfer to private parties. I have to admire his chutzpah in relying on this particular example. Detroit is a city with a long history of extensive eminent domain abuse, lowlighted by the infamous 1981 Poletown case, in which some 4000 people were forcibly displaced so that the land could be transferred to General Motors to build a new factory. Ultimately, Detroit’s misuse of eminent domain was a notable factor in the city’s economic decline, culminating in bankruptcy. To say that Detroit would be better off with more use of eminent domain is a little like saying that the Soviet economy would have worked better if only they had relied more on central planning