Eminent Domain: Are Homes "Somehow Different"?
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A Pennsylvania law professor is advocating a "compromise" response to the Supreme Court's decision in Kelo v. New London, No. 04-108 (2005), which held that the Fifth Amendment's "public use" requirement is now essentially a nullity.
D. Benjamin Barros, Associate Professor of Law at Widener University School of Law, suggested to the Pennsylvania House of Representatives that homes be subject to a special form of "heightened scrutiny" for eminent domain purposes:
Some hasty stitches:
--The Fifth Amendment says nothing whatsoever about houses being "different" (but see, for perspective, the Fourth Amendment). Indeed, the Fifth Amendment doesn't even make a distinction between real property and personal property (or intellectual property, for that matter). It says "property" -- full stop. Any "degrees of property" are entirely arbitrary and subjective and have even less logical support than the (false) "public use versus public benefit" equivalence underlying Kelo. If Kelo makes no sense as a matter of constitutional law, then the Barros proposal makes even less sense.
--The entire premise is flawed. Who's to say that "homes are different"? That seems to me to be a subjective overlay, probably based on a stereotype of the typical middle-class suburban family. Do Joe and Jane Farmer care more about their home than their farmland? Should an immigrant and his children be told that the apartment building, in which they rent, is someone "worthier" or "more entitled to protection" than their corner bodega, which is their livelihood?
--Given the exact holding of Kelo (i.e., that private-for-private takings are permissible in the name of "economic development"), what if existing homes are condemned simply to build bigger and better (and more heavily taxed) homes? Giving an existing home a form of legal preference over a potential home not only makes no sense legally or logically, but also could, conceivably, raise due process or even equal protection concerns.
--Drawing an analogy to the gay marriage struggle is unavoidable. It's one thing to say, as a matter of political expediency, that civil unions are a viable compromise to full gay marriage rights, but that does not mean we accept the premise that heterosexual marriage is "somehow different." By the same token, if the argument is that "nothing more than protecting homes is feasible," then I might be more amenable to Professor Barros' proposal. But at this point what exactly is won by abject surrender on the "Kelo is just plain wrong" front?
It is far too early in the post-Kelo backlash to capitulate the way Professor Barros does. His proposal is premature, arbitrary and counterproductive. The Pennsylvania legislature should summarily reject it.
Hat tip to Law & Society.
D. Benjamin Barros, Associate Professor of Law at Widener University School of Law, suggested to the Pennsylvania House of Representatives that homes be subject to a special form of "heightened scrutiny" for eminent domain purposes:
Focusing on homes would be consistent with the common-sense notion that homes are different from other types of property. People become personally attached to their homes. Homes tie people to their communities. Displacement of people from their homes can separate them from family, friends, schools and jobs. I therefore suggest that you consider giving additional protection to homes in the eminent domain context.I strongly dissent. There must be no compromise, none whatsoever, in our indignation over Kelo.
Some hasty stitches:
--The Fifth Amendment says nothing whatsoever about houses being "different" (but see, for perspective, the Fourth Amendment). Indeed, the Fifth Amendment doesn't even make a distinction between real property and personal property (or intellectual property, for that matter). It says "property" -- full stop. Any "degrees of property" are entirely arbitrary and subjective and have even less logical support than the (false) "public use versus public benefit" equivalence underlying Kelo. If Kelo makes no sense as a matter of constitutional law, then the Barros proposal makes even less sense.
--The entire premise is flawed. Who's to say that "homes are different"? That seems to me to be a subjective overlay, probably based on a stereotype of the typical middle-class suburban family. Do Joe and Jane Farmer care more about their home than their farmland? Should an immigrant and his children be told that the apartment building, in which they rent, is someone "worthier" or "more entitled to protection" than their corner bodega, which is their livelihood?
--Given the exact holding of Kelo (i.e., that private-for-private takings are permissible in the name of "economic development"), what if existing homes are condemned simply to build bigger and better (and more heavily taxed) homes? Giving an existing home a form of legal preference over a potential home not only makes no sense legally or logically, but also could, conceivably, raise due process or even equal protection concerns.
--Drawing an analogy to the gay marriage struggle is unavoidable. It's one thing to say, as a matter of political expediency, that civil unions are a viable compromise to full gay marriage rights, but that does not mean we accept the premise that heterosexual marriage is "somehow different." By the same token, if the argument is that "nothing more than protecting homes is feasible," then I might be more amenable to Professor Barros' proposal. But at this point what exactly is won by abject surrender on the "Kelo is just plain wrong" front?
It is far too early in the post-Kelo backlash to capitulate the way Professor Barros does. His proposal is premature, arbitrary and counterproductive. The Pennsylvania legislature should summarily reject it.
Hat tip to Law & Society.
Posted by KipEsquire on
17 September 2005
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