The pundits, polls and press have spoken. But I’m not ready to jump on the bandwagon against the Supreme Court decision on Kelo v. New London (eminent domain). For a Jewish hermecurial critique of toxicality and business, I would like to see more analysis (iyyun) of the implications for business and its environmental effects on (etc). The Kelo decision may imply that governments will empower more “public use” development into various conservation lands. Yikes. (Still, such powers preceded Kelo and have been used to expand wilderness. Over-development is a huge problem beyond pre-existing eminent domain law. Is this a teiqu?)
What’s missing in the analysis of Kelo? A nagging problem: How does Kelo fit into long-range “takings” strategies to gut government regulation of environmental and occupational health? For more than a decade, corporations have organized legislation, litigation and ‘grassroots’ efforts to undermine environmental laws as “regulatory takings”. As John Echeverria (Georgetown Environmental Law and Policy Institute) explains:
Advocates of the modern "takings" agenda go beyond the original understanding of the taking clause and Supreme Court precedent to argue that regulations which limit the potential value of land and other property frequently result in takings. According to this view, takings occur under a wide variety of local, state and federal rules — from zoning regulations, to historic landmark laws, to wetlands permitting requirements, to habitat protection measures, to cite just a few examples.
Philosophical opponents of government regulation, and interest groups which stand to benefit from this agenda, have seized upon the takings issue as a political tool for seeking to confine the sphere of democratic decision-making. If the public had to pay every time a government official enforced some rule or regulation, there would obviously be far less regulation; at the same time, however, other property owners and other citizens protected by environmental protection standards or other laws would suffer economic, environmental, and other harms.
So far, I’ve found this concern in only a few places. For instance, Jeffrey Dubner of American Prospect:
The only way that the Supreme Court could legitimately have found for Suzette Kelo et al. is by saying that takings with the "public purpose" of "economic development" are unconstitutional. That's a very short step away from saying that takings with the public purpose of, say, reducing pollution is illegitimate as well. The libertarians at the Institute for Justice, who brought the case in the first place, know that full well.
Scott Lemieux ( Lawyers Guns and Money blog) said prior to the decision: “To get the Supreme Court in the business of determining what is an adequate "public interest" is a very, very dangerous game, and one that is likely to have a lot of bad consequences. Just as the Rehnquist Court has developed the idea of a "regulatory taking" in order to make environmental and zoning regulations more expensive, Kelo could result in a significant number of public policy options being taken off the table.” (emphasis added)
Lemieux has offered a similar analysis since the decision. “I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle…. But once the courts start making determinations about what constitutes the "public interest," the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run. … You beat them the way the West Side Stadium was beaten; through politics. Expecting the courts to protect poor property owners by determining which policies are legitimate public interests is a sucker's bet.”
The concern here is that cases involving of individual owners are used as precedents to undermine the legal foundations for environmental and other regulations on corporate conduct. Now, let’s assume that New London is acting unfairly against the individual owners in this case. It’s not clear to me whether an abuses of eminent domain should be reined in by judicial exceptions (i.e., equity), political intervention, or – as the libertarians want – a reinterpretation of the Constitution.
How does government (ab)use of eminent domain against individuals tie into government regulation of big business tie into? Part of the tie-in is private property. So we need to ask, can’t we distinguish between the rights of individual owners, mom and pop stores, etc. and the rights of industrial corporations and other big business?
Unfortunately, U.S. legal doctrine treats the corporation as a person. So, the more libertarians work to expand the rights of individual private property, the more they expand the claims of Exxon, WR Grace, Dow, Halliburton, and other multinationals to be “liberated” from government regulation and oversight. Can we both protect individuals from big government and, at the same time, empower big government to restrain and regulate industrial businesses?
It would be an interesting exercise to see how Talmudic law might untangle the knots that American law has tied itself into over big business regulation. Jewish law does posit a version of eminent domain for public uses. (e.g., mSanh 2:3, mBB 6:7) In the medieval period, rabbis assigned eminent domain and other public powers to the “seven trustees” of the city. For more info: David Novak, Covenantal Rights: A Study in Jewish Political Theory (pp.209-213) and this Jan 2005 article by Allan Arkush in Polity.
Furthermore, Jewish law can readily differentiate between the property interests of individuals and corporations. Indeed, Jewish law does not necessarily even admit the limited liability corporation as a valid entity (except via the validity of secular commercial law). We might imagine, therefore, that rabbinic judges could restrain eminent domain such as to prevent governmental abuses and, at the same time, they would not handcuff the government from its environmental regulation of the business sector.