Faux Federalism

The central fact of American federalism, as I’ve written before, is hypocrisy. 

Witness H.R. 1433, the Private Property Rights Protection Act of 2012, passed on February 28 by the House of Representatives.   The Act targets Kelo v. City of New London, the 2005 decision in which the Court announced that the Fifth Amendment does not forbid state governments from using their power of eminent domain to acquire—at fair market prices—private property for use in economic development projects.  Eminent domain is a power limited by the Constitution to taking property “for public use” and with “just compensation.” But some states interpreted “public use” to mean incorporation in public-private developments like the mixed use development at stake in Kelo—a corporate research facility, shops and restaurants, a hotel, and a park.

The right hates Kelo a lot worse than it hates the federal government.  Not long ago, in fact, Justice Antonin Scalia compared the case to Dred Scott v. Sandford, the 1857 case in which the Supreme Court held that black Americans were not citizens and never could be.  Dred Scott denied the humanity of a huge swath of the American people; it also helped spark a civil war.  Kelo, honestly, doesn’t seem quite that bad.  To say that is not to belittle the trauma of having to sell your house or land for a market price to the government when you don’t want to; anyone who has read Kelo knows how hard it was for Suzette Kelo, the plaintiff in that case, to see her beloved “little pink house” demolished to make way for a corporate research facility and shopping district.  Nor is it to say that these projects are a good idea; the plan in Kelo was a complete flop.  

However bad you think Kelo was, though, there’s one way it’s definitely not as bad as Dred Scott. That case set a constitutional rule—whites in, blacks out—that no state, no Congress could alter without amending the Constitution.  It took nearly a million deaths to bring about that amendment. Kelo has proved much easier to repair.  In fact, since the decision, at least 34 states have passed legislation to restrict or ban taking private property by eminent domain for economic development projects.  In all, more than 40 states now have such laws. It’s almost a textbook case of federalism at its best, in fact: states grappling with issues of property, economics, and liberty, and contriving local solutions that suit local conditions.

Except in this case, state experiments are just not good enough. If 42 states won’t allow economic development use of eminent domain, then as many as eight states may.  And that just can’t be allowed.  “The Kelo decision tramples our individual rights, giving government more power over Americans’ lives. This is a slippery slope that we can’t let continue, and my legislation will restore eminent domain to its proper, limited role,” Rep. F. James Sensenbrenner, the bill’s sponsor, recently wrote.   

Sensenbrenner was joined in sponsoring the bill by Rep. Maxine Waters (D-CA), along with civil rights groups concerned that eminent domain is disproportionately used against poor and minority communities. Whether these groups are right or wrong, they are not hypocritical—they have long been supporters of federal action to support the disadvantaged.  The Republican majority has no such excuse.  To them, when the question is voting rights, or reproductive freedom, or environmental protection, the states are supreme.  When it’s property rights, we are on “a slippery slope that we can’t let continue.” 

The Act provides that “[n]o State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity  to which such power has been delegated, over property to be used for economic development or over property that  is used for economic development within 7 years after that  exercise, if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.” It also permits a federal lawsuit against state or local governments that violate the federal rule. It’s a pretty sweeping federalization of an area of traditional state concern.

Kelo didn’t “give” state governments any power they didn’t already have under their own constitutions; it simply said that the Fifth Amendment, correctly interpreted, didn’t require federal courts to decide whether each state or local development was permissible or not under a “no economic development” rule. It was a classic pro-state federalism decision. The Act is a Big Brother mandate.

Just to underline the hypocrisy, consider § 9(1)(A)(iv) of the Act. There’s an exception to the prohibition on taking private property for “economic development”: “use as an aqueduct, flood control facility, pipeline, or similar use.” (Emphasis added.)

So if Keystone pipeline is coming through your Little Pink House, you’re out of luck.

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