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Back to the Bench, Andy

August 8th, 2006 · 11 Comments

The Washington Post‘s “Bench Conference” blogger Andrew Cohen is sorely vexed by an “atrocious,” “shrill” article on Kelo and eminent domain in Parade. Here’s Cohen:

In some ways this hysteria isn’t surprising given the reaction last year’s big Supreme Court eminent domain ruling received from mainline journalists. The convention [sic] wisdom had it then (and has it now, unfortunately) that a group of judges had suddenly defiled the centuries-old notion that a man’s home is his castle. The truth is much different. The Supreme Court in Kelo simply recognized that the State of Connecticut had made a series of legislative choices, spurred by aggressive lobbying from developers, that allowed local officials to take with just compensation private property and then turn the land over to private economic developers.

Likewise, the Ohio Supreme Court undertook a similiar analysis last month and came to a different conclusion: that state law restricted the ability of local officials to take private property for economic development. Two different states. Two different statutes. Two different results. Nothing outrageous or shocking or dismaying about that, right? [….] By whipping people into a frenzy of anger at judges and the big, bad “government,” the Parade piece and others like it do a great disservice to people whose homes may be threatened by eminent domain. The fact is that the solution to eminent domain woes also can be found precisely where the problems lie– at the State House.

Here are three phrases that appear nowhere in Cohen’s 500 words of tongue-clucking: Fifth Amendment. Public Use. Takings Clause. It’s as though someone had penned a long screed on the battle over sectarian prayer in public schools without acknowledging the existence of the Establishment Clause, then puzzled over why practitioners of some minority religion were taking the issue to the courts rather than their local government. (Perhaps Cohen just assumes state legislatures get to define “public use.” I wonder if he feels the same way about “equal protection.”) And painful though I know it must be for a Post staffer to slum in the pages of Parade, had Cohen read the article closely, he might have noticed that it does in fact discuss how “more than two dozen states introduced or passed legislation and constitutional amendments to stop what critics call ’eminent domain abuse.'”

So to recap: When someone does a sympathetic profile of families disposessed by eminent domain, exercised on behalf of private business, that’s hysterical editorializing masquerading as journalism. The loftier standards of the Post, on the other hand. are no bar to discussing a legal dispute in a way that defines one side’s actual legal argument out of existence. Perhaps Cohen just doesn’t want to acknowledge that the Constitution protects unseemly economic freedoms alongside nobler ideals like freedom of the press—let alone soil himself with a grubby debate about their scope. But that’s a shabby excuse for pretending it isn’t so.

Tags: Law



11 responses so far ↓

  • 1 James // Aug 8, 2006 at 2:50 pm

    I saw the Parade article and I was struck by one thing: the title of it was “Will the Government Take Your Home?”

    Now, government entities in the U.S. have always been exercising eminent domain, so “the Government” has always been in the home taking business. Moreover, “public use” has included private benefit for a long, long, time. It’s only the fact that we’re used to it, apparently, that produces the odd notion that seizure of land for a railroad is somehow “public use” when, in fact, the land winds up owned by a private corporation.

    In any case, the Parade article does mention that the Kelo case was about taking land to hand over to a private developer, but that isn’t what the title says, is it? The bad guy is stipulated as government, which then plays into the “government is bad” narrative, which is part of the conservative world view, (as, it should be noted, every other thing that appears in Parade magazine).

    In short, an article about the subject of business interests using governmental power for their own ends, which would be a left-leaning point of view, is spun into one of general anti-government dispepsia, which is a right-leaning POV.

    My old lefty friends have a saying, “Capitalism for the poor, and socialism for the rich.” I suspect that Cohen has some similar friends, and maybe that’s what Cohen is reacting to. Certainly he spotted the misdirection of the subject from those behind the action to “government.”

  • 2 Michael Yuri // Aug 8, 2006 at 4:36 pm


    The problem with viewing eminent domain abuse as primarily a problem of evil private developers rather than bad government is that it doesn’t accurately reflect what’s going on in many cities.

    Yes, in virtually every case there is a private developer who stands to profit. And in many cases projects are instigated by a developer who hopes to use eminent domain to make money. But every eminent domain project involves the participation of the government. Even when a developer initiates it, nothing happens unless the government is willing to play ball.

    And if you look at enough eminent domain cases you’ll find plenty of situations where this isn’t the case. Often, it’s the mayor or city council who dreams up a major development project. The developers only come later after the city requests proposals and bids for the redevelopment.

    Sometimes it’s just a desire to raise city revenues. Sometimes it’s an attempt to “solve” other city problems (like crime and poverty) by pushing out the undesirables. And sometimes it’s just a city official with a God complex who wants to remold the world to his own liking.

    If you doubt it, take a look at any legislative proposal to scale back eminent domain. The primary political opposition will be from municipal leagues or mayors’ organizations. The same is true of the amicus briefs in eminent domain litigation. Maybe this is really driven by private developers and the cities are just in their pockets, but even if that’s true it points to a serious government problem.

    I’m not saying that people should ignore the role of private parties in eminent domain abuse. I’m just saying that it’s an even bigger mistake to ignore the role of government. It hardly amounts to some sort of devious spin to refer to it as “the Government” taking peoples’ homes.

  • 3 James // Aug 8, 2006 at 5:01 pm


    One of the serious problems with both the “liberal” and “libertarian” outlook is the apparently hypnotic appeal of the word “government.” It is a magic word, used for all sorts of mischief.

    Yes, “government” is involved in every abuse of eminent domain, since “government” is involved in every use of eminent domain itself. “Laws” are also involved. As is “property.” And if you look, you’ll find someone who has decided that each of these is to blame for the situation.

    But there isn’t a road, railroad, power line, city, or even large building in this country that does not owe eminent domain for its very existence. Each and every one of them requires “government” for its creation. So why is “government” to blame for the abuses? For that matter, why is one instance an “abuse” and another, well, what? I’ve known doctrinaire folks who claim that all of them are abuses, and who insist, all evidence to the contrary, that eminent domain wouldn’t be needed in their concept of a just society. Which is, of course, true. Concepts are not bound by facts; they can all go bare and live by the air.

    The real money question here, who is promising to rid us of those abuses? And what is their agenda? I guarantee you, Parade magazine is not on your side.

  • 4 Michael Yuri // Aug 8, 2006 at 5:58 pm


    I honestly don’t understand exactly what your complaint is. You note that eminent domain is used by governments for good things like roads and power lines. OK, fine. But how does this excuse them from all blame when they use it for less appropriate purposes?

    I hesitated before using the term “abuse”, because I realize it’s a loaded term that people will define it differently. But let’s confine it to the most clear-cut cases: when property is taken to one private party for direct transfer to another private party, with the only potential public benefit coming from secondary effects like increased tax revenue. Replacing a family home with luxury condominiums. Replacing a successful local business with a national chain.

    This is the type of seizure at issue in Kelo. It’s the type of seizure at issue in Norwood. It’s the focus of the Parade article. It’s the primary focus of every major eminent domain reform proposal since Kelo. And the vast majority of the population opposes this type of eminent domain seizure.

    (1) Governments are deeply involved in this type of abuse, as I noted in my last comment. (2) The only way to stop it is by putting pressure on the goverment by: (A) reining in local officials by placing them in fear of being unseated, or (B) getting state legislatures to change eminent domain laws to prevent this abuse.

    In light of this, why doesn’t it make perfect sense to focus on government as both the source of the problem and the only realistic solution?

    You seem to be attacking a straw man. Yes, there are a small number of people who vehemently oppose any and every use of eminent domain. But that has nothing to do with the mass campaign against eminent domain abuse. The homeowners across the country who are up in arms over Kelo-style takings aren’t protesting the building of roads and utilities. They’re attacking the extreme abuses that turn the land over for another private use.

    The same is true for the new and proposed statutes and state constitutional amendments. They’re not banning takings for traditional public uses — they’re banning the abuses of eminent domain for private use.

    If you want to debate the purists who oppose all eminent domain, be my guest, but don’t pretend that that has anything to do with the Kelo backlash or the article in Parade.

    Finally, I have no idea what you’re getting at in your final paragraph. Who do you think is behind these campaigns? And what is their real agenda? And whose side is Parade on? Seriously, I don’t know what you’re getting at.

  • 5 James // Aug 8, 2006 at 7:20 pm


    There is a profound difference between noting that there is an abuse that is originating in the private sector (strip mining, forest clear cutting, war profiteering, land taking) which has a solution in government action, and claiming that it is government that is the source of the problem. The first is basically an issue of governance and can be solved by legislation. The latter is a radical interpretation that leads to radical proposals and solutions, such as constitutional amendments, or electing Presidents who ignore laws.

    In its simplest terms, one can say, “Developers are using political connections to take your home, vote Democrat.” Or, one can say, “Government is trying to take your home, vote Republican.”

    I believe that Mr. Cohen read the Parade article as the latter, as did I, quite independently. You, apparently, did not read it that way. (You did read the original article, yes?).

    As for the subtler point, that Parade is a right wing propaganda organ, that also is a matter of perception.

    In any case, Cohen’s article seems to be saying that the issue is a political issue that can be solved by the ordinary workings of the political process, i.e. by passing laws according to the desires of each state. You seem to be in the camp that asks for radical solutions (such as constitutional amendments). I believe that radical solutions are usually ill-advised and almost always pernicious.

    I’ll also ask, because I really don’t know and you seem to consider it obvious, why taking someone’s home to turn it over to a private railroad is okay, but turning it over to a developer of an industrial park is not.

  • 6 Michael Yuri // Aug 8, 2006 at 10:44 pm

    First of all, I don’t understand the need to force eminent domain into a left vs. right framework. By all rights, eminent domain should be a liberal issue — the victims are almost always poor, often minorities, virtually never wealthy or politically connected. The biggest beneficiaries are millionaire developers and large corporations. The opposition to eminent domain cuts across party lines, with the vast majority of Americans opposing this type of transfer to private parties. Notice, for example, the role of the NAACP in fighting eminent domain.

    Yet, people insist on painting the opposition to eminent domain as some insidious right wing plot. Please, take a look at any of the 30-odd states that have passed statutes or constitutional amendments since Kelo. Now tell me, where are the provisions that were snuck in to secretly help the rich and powerful? They’re not there. There’s no secret plot. The laws attempt to do exactly as advertised — protect landowners from having their property taken and given to private developers.

    Now, let’s take a look at the Parade article. What exactly do you find so offensive about it? I see exactly two references that could be read as anti-government. The first is the title: “Will the Government Take Your Home?” This is an eye-catching title that accurately describes what eminent domain is, but this is apparently enough to get you and Andrew Cohen riled up. The only other negative reference that I see is the claim that “[t]he decision in Kelo v. City of New London triggered a sort of government land-grab.” The point of that line is that the pace of condemnations increased after Kelo, but fine, it does paint the government as the bad guy.

    But look what else is in the article. It describes both the Lakewood and Long Branch cases as driven by “A private developer, with the government’s backing, [who] wanted a big piece of property.” It’s hardly ignoring the role of private developers in pushing for eminent domain. Furthermore, it repeatedly mentions the role of developers in each of the two takings. Aside from the title and the one line I mentioned, is there anything else you find objectionable? Is it impossible to mention the role of the government in eminent domain without being Republican propaganda?

    Finally, your insistence on framing all eminent domain abuse as driven by private developers ignores the point that I tried to make in a previous comment. It just isn’t true in all cases. This is especially the case in many urban redevelopment plans, where the government carves up a section of the city and then allows numerous developers to bid on the various parcels. It’s also extremely common for cities and states to create redevelopment authorities with jurisdiction over a specific geographic area. These agencies then actively solicit proposals from developers.

    Do you not believe this really happens? Because if that’s the case you need to look more closely at how eminent domain actually functions. Or do you think these takings are totally unobjectionable when they’re initiated by a government body? Because I simply do not understand that mindset. City governments are far from noble servants of the people, and these projects are just as destructive when they come from the mind of a utopian urban planner rather than a greedy businessman.

    Finally, even when an eminent domain project is initiated by a private developer, it is the government that drives the project. It is the government who declares your home “blighted” or “deteriorating” or in a “redevelopment zone”. It is the government that you will have to battle in court. And in high profile cases, it will be government officials who go on television and accuse families of trying to scam the city out of money and government officials who threaten them with enormous fines simply for challenging the taking in court.

    The New London seizure is a perfect example. Pfizer was the primary private beneficiary of the redevelopment project, and may have had a role in its initial proposal. But after it became a high profile case, Pfizer did everything it could to distance itself and renounce efforts to fight the remaining owners. The City of New London, on the other hand, after admitting publicly that it didn’t actually need the remaining homeowners’ land, insisted on taking it, out of what can only be described as spite.

  • 7 Michael Yuri // Aug 8, 2006 at 10:48 pm

    Cohen’s article is strange, because it only makes sense if you insist on reading “government” to mean the “federal government”. He notes the title of the article, and then jumps directly to a reference to G-men. But the Parade article says nothing about the federal government aside from describing the Kelo decision.

    Twice, Cohen says that the problem isn’t the government, it’s the state legislators. Huh? This seems completely bizarre until the last paragraph, where it becomes clear that Cohen is talking only about the *federal* government. In fact, Cohen is quite clear that he thinks *state* government *is* the problem.

    But look what the Parade article actually says. Every single reference to government in the article is a reference to state and local government — not the federal government. Look at the “What You Can Do” sidebar. Every single action is directed at state and local government — not the federal government. Cohen is arguing against a position that doesn’t even appear in the Parade article because for some reason he equates “government” with “the federal government”.

    Cohen’s solution is to fight eminent domain at the state level. But that’s exactly what the entire post-Kelo eminent domain movement has been about. And that’s exactly what the Parade article suggests doing.

    Finally, you refer to constitutional amendments as a “radical solution”. First of all, let me be clear, no one is talking about an amendment to the US Constitution. As far as I know, there have been *zero* serious proposals to amend the US constitution in relation to eminent domain.

    State constitutional amendments are another matter entirely. If you view state consitutional amendments as “radical”, you don’t know much about state constitutions.

    Unlike the federal constitution, which is short and primarily composed of broad structural provisions, state constitutions are generally much longer and deal with all manner of very specific provisions that are far from fundamental. Florida’s constitution, for example, has a provision on smoke free workplaces, and another dealing with the treatment of pregnant pigs. Numerous state constitutions have sections dealing with specific taxes, housing plans, and municipal governance.

    And eminent domain isn’t exactly a strange thing to deal with in a constitution. Virtually every (if not every) state constitution already has a takings clause which places (often minimal) limits on eminent domain.

    Second, unlike the US Constitution, which has only been amended 27 times in 200+ years (18 times, when you consider that the Bill of Rights was adopted all at once), state constitutions are amended frequently. In some states, the constitution is amended several times per decade or more. Many states have actually adopted entirely new constitutions on multiple occasions.

    Third, there is often good reason to seek a constitutional amendment. Look at Massachusetts, for example. On several occasions, the citizens of Massachusetts have passed laws by statewide ballot initiatives, only to have their representatives pass new bills shortly after, repealing the initiatives. In a situation like that, a state constitutional amendment may be the only way to force the representatives to actually do what the people want. This is especially true if there is a concern that the policies are being driven by wealthy, politically-connected donors.

    Far from being radical, constitutional amendments are a standard part of state politics.

  • 8 Michael Yuri // Aug 8, 2006 at 10:50 pm

    You ask what is the difference between a private railroad and a private real estate development, and I’m perfectly willing to admit that the distinction is sometimes a difficult one, but it’s important to make, nevertheless. In virtually every area of the law, there are distinctions that do not have neat black and white divisions. This does not and should not prevent us from drawing lines.

    The problem is, the extreme standard that is currently in place as a matter of federal law — any taking that provides some minimal benefit to the public is legitimate — has no limits. Any home or business can be taken as long as the government can predict that it will be replaced by something worth more. As long as these takings are within the government’s power, both private and government parties will have incentives to use this power for their own benefit. The only effective solution is to severely limit this power.

    One traditional distinction between railroads and fully private uses is that railroads are common carriers, required by law to serve all comers. In fact, this status has often been justified by the fact that they are typically created by eminent domain. Utilities fall in the same category. This distinction isn’t perfect, and there may be some tough cases at the edges, but it has the virtue of placing the uses that most people think are legitimate (police stations, court houses, power lines) on one side of the line, and the uses that most people oppose (residential and commercial development by private parties) on the other side of the line.

    I don’t pretend to have a perfect solution, and there certainly isn’t complete agreement about exactly where to draw the line, but it’s clear that the current system is very broken.

  • 9 James // Aug 9, 2006 at 12:58 pm


    You criticize Cohen for focusing on the article as a criticism of the Federal Government, then, when asked about the distinction between two types of eminent domain seizures, you immediately begin criticizing the Federal Government for having to lax a standard for allowing eminent domain seizures. That, I think, is Cohen’s point. This isn’t being handled as a local matter in the popular press; it is seen as a Federal matter, requiring even, it would seem Constitutional Amendment.

    You say that as far as you know there have been zero calls for a Federal Constitutional Amendment on the matter; the second item in a Google search immediately comes up with:


    I might also add that there have been numerous calls for Federal Amendments to classify such things as wetlands protections as “takings, which is a related issue.

    Look at Julian’s original posting. He describes the Parade article as “sympathetic” to the homeowners who are the targets of eminent domain. Practically nothing in the original Parade article that is sympathetic to the homeowners would not also apply to _anyone_ who has lost property to eminent domain. I’ve know people who had their homes seized for airport air space. They speak exactly the way that the people in the article speak, even down to noting that it was for someone else’s benefit, and they didn’t get as much as they should have gotten.

    In short, this is just a little piece part in the ongoing attack on the legitimacy of Federal authority in all matters.

    You also insist that this should not be a left/right issue, and I probably agree, since I never made any such claim. I did suggest that it is a matter of deliberate partisan politics; the current political alignment is less one of left/right (although, if you consider the original meaning of those terms, being against or in favor of inherited wealth and power, there are certainly a lot of right wing forces in the Republican Party, but there are also such forces in the Democratic Party), and more one of authoritarianism vs democratic institutions.

    I also suggest that this is another one of those “code phrase” issues, where one political faction communicates to its followers using words and phrasings that then have “deniability.” In this case, the code phrase is “The Government.” Not “Your state and local governments.” “The Government,” in every bar, church, and picnic in Americal, means “The Federal Government.” Using code words even better when those who deny the communication are (like you) not part of the political base.

  • 10 Michael Yuri // Aug 9, 2006 at 5:52 pm

    Frankly, you seem to be a bit confused. You talk about “the ongoing attack on the legitimacy of Federal authority” and allude to “code words” for an attack on the federal government. But when it comes to eminent domain, this is 100% backwards. I mean completely, totally, 180 degrees in the wrong direction.

    Look, here are the facts:

    1) Virtually all eminent domain seizures are by state and local governments, not the federal government.

    2) The Kelo Supreme Court case was about giving the federal government a *stronger*, not a weaker role in eminent domain. It was trying to establish a role for the federal courts to stop state actions that infringed on constitutional rights. This is exactly the same broad role that the left promotes for the federal courts in areas like free speech, search and seizure, and civil rights. The courts act as a check on state governments when they overstep constitutional limits on their power. If anything, this an expansion of federal authority — exactly the opposite of the “attack” you seem to be worried about.

    3) Post-Kelo, the efforts of eminent domain reformers have turned toward reining in state governments directly, rather than through the federal courts. This is what the Norwood case was about. This is what all of the state statutes and constitutional amendments have been about. This is how the Parade article advised people to go about fighting eminent domain abuse. This is what Andrew Cohen said is the correct approach. It has nothing to do with limiting the federal government.

    4) The only post-Kelo reform effort at the federal level (as far as I am aware) has been an attempt to restrict the use of eminent domain on state projects receiving federal funds. Again, this is not a limit on the federal government. This expands the role of the federal government by attaching strings to the use of federal money by states. This is exactly the same model that allows the Department of Education to exert extensive control over state education policy.

    I really don’t think any of these 4 points are debatable. Do you disagree?

    A few more things:

    A) I did not say “zero calls for a Federal Constitutional Amendment” — I said zero *serious* proposals. Let’s set the bar really low: Has there been a single bill proposed in either house of Congress for an eminent domain amendment? Has a single state legislature called for an amendment convention? Have any of the major organizations pushing for reform (e.g. Institute for Justice, Pacific Legal Foundation, etc.) called for an amendment?

    Are you seriously pointing to PetitionsOnline as evidence? That petition sits right alongside petitions for an amendment to ban religious marriage, an amendment to ban heterosexual marriage, and an amendment to ban income and property taxes. I find it insulting that you linked to this – it shows that you either aren’t taking this conversation seriously, or you have no respect whatsoever for my intelligence.

    I’ve responded to you civilly and addressed your arguments on the merits. How about granting me the same respect?

    B) You say that I immediately began criticizing the federal government for lax standards. What I was doing was giving the legal context to explain why I believe state laws are necessary. To the extent that it is criticizing the federal role (rather than just describing), it is charging the federal courts with being too weak and too inactive in this area.

    C) You also say that “This isn’t being handled as a local matter in the popular press”. But that’s exactly what the Parade article was doing. It never once attacked the federal government. Every government action portrayed negatively is an action of state or local governments. Every suggested action is directed at state and local governments.

    To the extent that any press has been focused on the federal government it has been to encourage a stronger federal role. And lately (after the initial reaction to Kelo died down) the vast majority of eminent domain press has been focused on state and local government.

    If you don’t believe me, plug “eminent domain” into Google News. Right now, all 10 of the stories on the first page are about state and local eminent domain issues. 9 of them are about state and local efforts at reform. Only two of them even mention Kelo, and none of them suggests any role for the federal government. The 10th story is about a particular eminent domain project, unrelated to reform issues.

    So when you claimed that this isn’t being handled as a local matter, were you lying? Or just completely ignorant? Seriously, why should anyone take the time to debate with you if you’re just going to make things up?

    In case you’re curious, 8 out of 10 articles on the second page are about state and local eminent domain reform. The other two are about eminent domain more broadly, but prominently mention state reform efforts. None of them calls for federal action.

    D) Finally, even if you insist that the term “government” is nothing but a code word to appeal to people on the right, shouldn’t this be viewed as a success for the left? They’ve co-opted the right’s rhetoric to get people worked up about what should be a liberal issue.

    And this is a liberal issue. Eminent domain targets the poor and unconnected and benefits rich corporations. The proposed solutions are to rein in state and local government and to give more power to the federal government.

    You are apparently so reflexively hostile to anything that can even be perceived as an attack on the federal government that you completely ignore what the article is actually saying and what the eminent domain reformers are actually doing. This kind of hostility does nothing but undermine cooperation on what should be an ideal left-right crossover issue.

  • 11 James // Aug 9, 2006 at 8:12 pm


    You’ve just posted a very long piece in which a quick scan says that you first call me confused, and then say “Are you lying?” followed by saying that I am “reflexively hostile.”

    You win. Bye.