A Stitch in Haste

Senator Jon Cornyn (R-Texas) has introduced a bill to limit federal eminent domain use and abuse, with an important twist:

The legislation would clarify government's exercise of its power of eminent domain to be limited only for public use. "Public use" shall not be construed to include economic development. This standard of protection would apply only to (1) all exercises of eminent domain power by the federal government, and (2) all exercises of eminent domain power by state and local government through the use of federal funds.

Um, gee thanks, but I wonder whether this bill could actually be detrimental from a libertarian perspective.

Two hasty stitches:

1. For this bill to define "public use" within the context of the bill itself is utterly meaningless. For eminent domain purposes, "public use" is a constitutional term -- that was the whole point of Kelo. And, lamentations of "damn activist judges" notwithstanding, it is the role of judges, not legislators, to determine what constitutional text means. See, of course, Marbury v. Madison, 5 U.S. 137 (1803).

So for Congress to prevent itself or other realms within the federal government (e.g., the military) from private-for-private takings is very warm-fuzzy-feeling to be sure, but when push comes to shove, any dispute about what "public use" means has already been decided by Kelo. We certainly may disagree with and despise the Court's ruling, but hopefully no one disputes their authority to make it. (Note that I am not saying the the Cornyn bill would be unconstitutional, just that it wouldn't be very useful if it somehow wound up in court).

Also, I am not aware of any actual examples of federal use of eminent domain "for economic development" (except maybe with respect to federal jurisdictions such as the District of Columbia (see Berman v. Parker, 348 U.S. 26 (1954)).

Which raises another issue: I'm not sure that part of Cornyn's bill is even needed outside of the D.C. context, since seizing land for "economic development" is not an enumerated power anyway (compare: overseeing the District is an enumerated power). If I were arguing a hypothetical "federal Kelo" fact pattern in court, I would probably argue the lack of enumerated powers over a restrictive Congressional definition of "public use." (Of course, given the newest emasculation of Commerce Clause limitations under Gonzales v. Raich, arguing enumerated powers might be equally futile, but I think it would be more potent than arguing the Cornyn bill were it to become law.)

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2. Consider the second prong of the Cornyn bill: The federal government speaking softly and carrying the big stick of threatening to withhold federal funds to states unless they "behave themselves"? Where have we seen that before, and where are we going to see it again?

Here's yet another example of myopic, consequentialist libertarians seeing only the ends and completely ignoring the atrocious means by which we get there. It's the Internet wine cases all over again: what's a little lost textualism among "libertarians" when there's Internet wine to buy?

But how are these same libertarians going to feel, after cheering the federal government bullying the states with the threat of withheld funding, when it comes time to argue against the federal government doing the very same thing in Rumsfeld v. FAIR (the Solomon Amendment case)?

Libertarians should be aghast at this part of the Cornyn bill -- it is nothing more than yet another potential abuse of federal power and yet another betrayal of fiscal federalism, which is a far greater threat to libertarian ideals than even the Kelo travesty.

(Fighting all federal subsidization of state and local government programs, as a blanket policy, is of course a fundamental libertarian principle. But cherry-picking which funding threats to rally behind and which to let quietly slide by will only lead to claims of inconsistency and hypocrisy later.)

When it comes to bad policies, "the enemy of my enemy is my friend" is a dead end that will only result in libertarians losing on both fronts. Intellectual consistency is vital, and the funding-threat prong of the Cornyn bill is not consistent with libertarianism.

Be careful what anti-Kelo legislation you wish for -- you might get it.

The far better way to fight Kelo is at the state level: limit, by state constitutional amendment if necessary, the ability of municipalities to authorize private-for-private takings. The federal Constitution always represents only the floor on individual rights; state laws and constitutions can always afford more rights. And, since the private-for-private outrages are happening at the state and local level reather than at the federal level, clearly it makes more sense to fight the battles there, in the state houses.

The federal prong of the Cornyn bill, while a welcome symbolic gesture, is mostly irrelevant regarding Kelo. The funding-threat prong is fundamentally un-libertarian and should be opposed.

Those commenting on the Cornyn bill include WILLisms, SCOTUSblog, Coyote Blog and Out of Control.