Why Kelo Was Rightly Decided II

An interesting, albeit anonymous, comment on the recent post criticizing the attempts to breathe some sort of independent life argues that the "'public use' prong is well accounted for in the Constitution already" under a "needfulness" requirement derived from certain clauses of the Article I Section 8 and other parts of the original Constitution, in particular the grant of "Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." Hence, the federal government could only own "needful" buildings, which means the same as property for "public use," and with Incorporation, the same requirement applies to the States.

But that theory hardly accounts for a "public use" prong of the Fifth Amendment:

First, the principal source of the alleged needfulness requirement is Article I, Section 8. But the eighteen clauses of that Section are conjunctive, not disjunctive. That one clause may grant Congress authority over certain "needful Buildings," hardly precludes that other clauses may authorize the federal government to own other non-needful buildings. Even to somebody repelled the currently accepted cancerous interpretation of clause 3, it barely even suggests that this is a limitation on all authority of the federal government.

In fact, I am entirely unfamiliar with any modern case in which a court has denied the federal government the power to own any property because it was not "needful." Case law being what it is, it is conceivable that such exists, but it surely cannot be a common type of claim.

But the factual circumstances for such a case seem difficult to imagine. The federal government, directly or indirectly, owns vast amounts of real estate most of which is devoted to nothing at all except wilderness, which may be nice but surely must be the opposite of "needful."

And what happens if the federal government decides to develop an area and lease the land to a property developer? Is the use needful or is it not? If it is, how would it not be in a federal parallel to Kelo? If it is not, what is the remedy? Is the federal government forced to sell the property to the developer? But is that not what happened in Kelo? Give it back to the original owners, even if the cannot be determined? Or must all federal land be barred from development forever because of the needfulness requirement?

Second, strange as these legal consequences are, things truly get bizarre when one tries to incorporate the "needfulness" requirement against the States. A needfulness requirement arising out of a Constitutional grant of power to Congress is the sort of logical incoherence which makes reverse incorporation appear the model of sound legal reasoning by comparison.

If this part of the original Constitution is incorporated against the States, what other parts can or should be? The requirement for bicameralism? Has anybody told Nebraska? Each state needs its own president? Are state legislatures denied all authority within their borders which Article I Section 8 denies Congress within the United States? If not, why just this one?Or does incorporation of the Article I Section 8 power of Congress give each state all the power of the federal legislature? Incorporating a grant of power, rather than restrictions on power like the Bill of Rights, inevitably leads to such absurd hypotheticals.

Finally, none of this in any way resolves the different problems of deeming the Takings Clause to have a "public use" prong. If a governmental act is a taking for public use, it is permitted with just compensation. If a governmental act is not a taking for public use, the Fifth Amendment (incorporated or not) is entirely silent on the issue and cannot be prohibited by it. Tertii exclusi. One cannot meld together entirely two separate legal theories—public-use prong and needfulness requirement—each of which has unsurmountable logical and textual problems and then pretend that some amalgam of the two is defensible because each part lacks some of the flaws of the other.

Environmental Liberaltarianism, Perhaps Not

Recently I had a novel experience: Actual hope that liberaltarianism might have positive future. Even more uncharacteristic than the emotion was its trigger, a perfectly sensible New York Times(!) article praising the success of the 1990 cap-and-trade acid rain program as a model for successful market-based environmentalism:

Most famously, a 1990 bill signed by the first President Bush forced coal plants to buy permits if they were going to emit the sulfur dioxide that caused acid rain. With the price of emissions suddenly higher, the plants looked for innovative ways to reduce pollution — and succeeded more rapidly and cheaply than experts had predicted.

This history is the basic argument for putting a price on carbon today, and the next several weeks are likely to determine whether that happens. The chances of Congress’s passing a permit — or cap-and-trade — system that applies to the whole economy are low. But it could still create a version that covered power plants, if not factories and transportation. That would be no small thing.

David Leonhardt, Saving Energy, and Its Cost, N.Y. Times (June 15, 2010). But the best part of the article was the following quote:

"Instead of leaving it up to the government to identify the solution and tell people what to do, you are leaving that decision to the people who know best," says Nathaniel Keohane of the Environmental Defense Fund. "A bureaucrat would never have enough information to do as good a job."

Id. If hard-core environmentalists at EDF can understand and unashamedly say this, there could be hope for cooperation and sensible policy. However, this week we are informed that:

The original U.S. cap-and-trade market, which succeeded in slashing the power-plant emissions that cause acid rain, is in disarray following the issuance of new federal pollution rules.

The collapse in the pioneering market where power producers trade permits that allow them to emit sulfur dioxide and other pollutants that cause acid rain comes as policy makers seek to establish a similar market to curb the emissions of carbon, a cause of climate change.

The acid-rain market has struggled for the past two years as utilities, states and investors waited for the Environmental Protection Agency to issue new rules. The rules, released last week, put tougher limits on emissions by power plants but rely less on trading. As a result, the allowances that utilities now trade to allow them to emit sulfur dioxide are expected to become worthless.

Mark Peters, Changes Choke Cap-and-Trade Market, Wall St. J. (July 12, 2010). (h/t Greg Mankiw). Apparently they were just kidding about seeking market-based solutions.

If thanks in part to the good-faith support of environmentally inclined libertarians—a small but not entirely uninfluential group— any form of carbon cap-and-trade or Pigouvian carbon tax is enacted, expect to see a Bobby-Bird style command-and-control regime to be imposed on every activity generating CO₂, one of the most common substances on earth, within 15 years.

A Bad Argument Against Terrorist Profiling

In an unfortunately over-elaborate comment on another fine blog, I responded to an argument against using racial, gender, religious, and age profiling against terrorism (such as, for example, in airport screening). Namely, that if such profiling was undertaken terrorist organizations would just switch to using agents which don't fit the profile and we'd all be worse off. I've been repeatedly surprised that this argument arises not only in idle blog comments, but is also made by otherwise more sensible people (e.g., Bruce Schneier) in far more elevated forums. As I'd hate to deprive my devoted readership of several individuals of any pearl of wisdom, let me explain in revised form why that argument makes very little sense.

Before dealing with the argument, let's aside a silly straw man often combined with it: That our only choices are (1) complete disregard for evident surface characteristics or (2) that we rely on stereotypical characteristics of terrorists to the exclusion of all other evidence. Option 2 means performing cavity searches on every young man with a tan and allowing grannies to carry bazookas over their shoulders onto airplanes as long as they also wear a cross, so it follows that Option 1 is the only sensible.

That is—of course—nonsense. Nobody advocates ignoring other indicators of suspiciousness or that any individual, regardless of appearance should be given an automatic pass. The question is whether stereotypical appearance factors should never be given any weight in making any discretionary investigatory decision or that sometimes they should be given some weight—i.e., to use a racial/ethnic/religious/age/gender profile.

To start with what we know: The vast majority of operatives of terrorist organizations seeking to murder Americans (and others) identified from past attempts are young Arab Muslim men. And most of the rest are at least three of the four.

From this it follows that persons of this description must be among the most plentiful, available, and easy to use resources available for such organizations. In other words, this demographic has the highest ratio of reward (in terms of dead or terrorized infidels) to organizational effort (in terms of money, time, and other resources). If another demographic had a better ratio, the terrorist organization would already have switched to them and costlessly increased their effectiveness.

That does not mean that there aren't blond-haired blue-eyed Norwegian grannies who converted to Islam and are now all hot to kill for Allah—surely there must be. What it does mean is that they must be much rarer, harder to use, and generally more expensive means of murdering infidels. If Osama Bin Laden had a granny brigade at his disposal he would already have unleashed it, rather than relying on such a non-diverse and identifiable set of operatives.

So what happens if we institute profiling? Young Arab Muslim men become much more likely to get caught and hence less useful tools. At the same time grannies, given the same amount of total enforcement effort and hassle, become at least a little less likely to get caught and hence more useful tools.

These two effects, while in opposite directions, are not of equal magnitude: The terrorist organization is much more hurt by the declining effectiveness of its chief type of asset than it is helped by the increased effectiveness of a type of recruit it already hardly used because of other reasons. So while there is presumably a shift in the terrorist organization's allocation of efforts, it will on net be worse off (and we better off) after the shift.

How much this hurts them (and helps us) depends on how much more expensive (in the above sense) grannies were for the terrorist organization than young Arab Muslim men before profiling. If currently there was only a slight advantage to using the latter, then the net harm on terrorist organizations of profiling would also be small and so would the net help for us.

While that is possible, this seems unlikely. Terrorist organizations are likely to very much prefer using their current demographic (and hence be hurt a great deal by profiling) for several reasons.

First, there is a substantial individual dispersion within each demographic. If the difference in average between recruits from the two demographics were small, the distributions would likely overlap and grannies would be underrepresented in the sample of terrorist, but still a substantial presence. Instead, we see them hardly at all. That means that the difference in average between the two demographics is likely large and shifting from one to the other would impose a large cost on the terrorist organization.

Second, the difference in inherent characteristics between the demographics as to suitability as terrorist agents are likely to be substantial. While there likely are some socially contingent factors, others are so fundamental and significant that I'd estimate them to have a large effect. Lutherans are inherently less likely to consider the majority population of Europe and the U.S. to be infidels worthy of death than Muslims are. Arabs and Muslims today have a far greater cultural acceptance and valorisation of suicide attacks and even terrorism in general. Norwegians are far less likely to feel—rightly or wrongly—profoundly racially alienated from Americans than Arabs are. And throughout history and almost all known cultures, the young and men have always shown far greater propensity—again for good or ill—for the sort of physically dangerous but potentially glorious pursuits like suicide terrorism.

Finally, and most importantly, it does not matter if my predictions—admittedly based in part on broad cultural stereotypes—for the effectiveness of racial/cultural/gender/religious profiling are correct because the practice itself will demonstrate the correct point for stopping:

At the point of maximum harm to terrorist organization efforts to kill us—and for us the optimum amount of profiling—grannies and young Arab Muslim men and everybody else will have become equally (in)effective. At that point, we would expect to observe terrorist organizations to use all demographics equally. By no means should one pursue profiling beyond that point as it would only help the terrorists.

In other words, keep profiling until the demographics of apprehended terrorists look like America. If it is good enough for the U.S. cabinet, it is good enough for Al Qaeda. And just think how pleased their diversity management consultants will be!

More seriously, I've discussed a superior way to compensate the vast majority of innocent young Arab Muslim men (and others) who are inconvenienced by profiling twice before.

Why Kelo Was Rightly Decided

In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court upheld the involuntary seizure of Ms. Kelo's house by the City of New London, which immediately resold it to a property developer, against a challenge that this was not a "public use" and that the seizure therefore violated the Fifth Amendment's for-public-use clause. A great number of my friends with political views I find generally congenial and with substantial legal talent have taken great exception to this decision and undertaken substantial efforts to have it overturned.

I rarely have opportunity or inclination to say so, but in this case Justice Stevens—who wrote the majority opinion in Kelo—was right, if perhaps for the wrong reasons; and my redoubtable property-rights protecting clever friends are wrong.

When discussing the proper interpretation of a legal document, even a Constitution, it is often useful to read the actual operative text—this will not settle every question of interpretation, but it will exclude many earnestly tendered misinterpretations and does not take long. So here it is:

[N]or shall private property be taken for public use, without just compensation

U.S. Const. amend. V (Takings Clause, actual).

The language could not be plainer: The Fifth Amendment is completely silent on the subject of property not taken for public use. Hence, most of the advocates of a strong for-public-use analysis are aiming their fire in the wrong direction. If they could establish a category of takings which were deemed to fall outside the "for public use" category, the Fifth Amendment would not ban such takings. To the contrary, taking deemed not "for public use" would lose all existing constitutional protection, including the just-compensation requirement. If they had prevailed, the correct legal conclusion would not have been that Ms. Kelo got to keep her house, but that City of New London would have been able to take it without even having to pay her just compensation. This could hardly be the preferred outcome for the self-styled champions of Ms. Kelo's rights.

Rather, the advocates of a strong public-use analysis seem to be basing their argument on a different (i.e., imaginary) version of the Takings Clause which reads something like this:

[N]or shall private property be taken [except] for public use [and] with[] just compensation

U.S. Const. amend. V (Takings Clause, as imagined). But, despite some unfortunate dicta in some court cases, that is not what the actual Fifth Amendment says. Judges and lawyers charged with upholding the actual legal document should take their cues from its text, rather than from what they wish it said, as if some grand act of legal make-believe could change the text.

That simple fact should be sufficient to end any legal case based on the theory that one's property was taken not for public use. But even if one examined the entirely separate question of whether the actual Takings Clause should be replaced with the imaginary one through constitutional amendment, the right answer for friends of private property should still be no—the imaginary takings clause would impose practically no constraints on the government and, in so far as it nevertheless affected government conduct, the incentives created would be harmful to the cause of liberty.

Imagine that the for-public-use clause was a separate substantial legal requirement on government takings and that transfers to other private owners would be barred by it. Very little good would come of this.

First, any determined government could trivially circumvent it. All the City of New London would need to do is take ownership of the land and keep it while renting out the land on agreeable terms to a management company (i.e., what otherwise would be the property developer). Appropriate financial arrangements can be made which achieve nearly the same outcomes as if the City of New London could just sell the property to the developer outright. Nothing in this would benefit the Ms. Kelos of this world.

Second, we would have created yet another unnecessary area of indeterminacy in constitutional interpretation: How long does the City of New London have to hold the property before it is allowed to sell it? A day? A year? Forever? Nothing in this imaginary Takings clause even hints at a principled answer to this question.

Third, while a short holding period requirement would do little to even formally restrain a government bent on taking private property, a long one would be even worse. Do we really want to create a whole new class of property in this country which can only be held by the government with the government holding all residual claims? Property which can't ever be returned to private ownership? I understand that some nations have ill-advised policies which bar foreigners from buying certain types of property, like real-estate and natural resources, within their boundaries. But at least those countries usually allow their own citizens to own such property—we are proposing to bar even natives from owning certain properties. And we want to do this in order strengthen private property rights? This makes very little sense.

None of this is to suggest that the (actual) Takings Clause is not an extremely important constitutional provision. I believe strongly to the contrary. But all the real work of the Takings Clause is done by the just-compensation requirement. The for-public-use clause imposes no substantial independent requirements. Attempts to give additional meaning to the for-public-use clause are deeply misguided and true friends of property rights would do much better to direct their efforts at strengthening the just-compensation requirement—an area in which the Supreme Court has often ruled badly and could use some correction.

One criticism of this position which could be raised is that it effectively reads the for-public-use clause out of the constitution by depriving it of any independent meaning. Indeed, it is a sound principle of legal construction that every legal document should, as far as possible, be interpreted to give meaning and effect to every clause. Interpretations which fail to do so are—while not necessarily wrong—rightly disfavored.¹

But the interpretation of the Takings Clause given here does no such thing. To see that, imagine the Takings Clause without for-public-use language:

[N]or shall private property be taken … without just compensation

U.S. Const. amend. V. If one recalls that "taking" in the real property context—and most of the relevant property is real—can refer to any coming-into-possession-of without implying either involuntariness or government action, it is easy to see why public-use clause was added. Without it, the Takings Clause could easily be misinterpreted (and not necessarily, mis-!) as requiring that the price term of every private real estate deal must be approved by a court. Adding the for-public-use language to the Takings Clause is one of the simpler ways of barring such an interpretation and making clear that the clause only refers to involuntary takings by the government. That is sufficient to give the clause meaning and purpose. Trying to make it do anything more or else does violence to the language of the Takings Clause and leads to absurd or harmful consequences.

¹ This, however, is not an argument available to those—including all proper left-thinking legal scholars and practitioners and sadly the U.S. Supreme Court—who have adopted an interpretation of U.S. Const. art. 1 § 8 cl. 3 which renders the remaining 17 clauses of U.S. Const. art. 1 § 8 meaningless surplusage apparently enacted only to fight the previously unreported severe ink glut of 1787. But they are largely not the ones to which this post is addressed.

Why the Progressive Discontent with Obama?

I do not understand why so many progressives and modern-day liberals have of late come out with their discontent with the Obama administration. It is true that the wars in Iraq and Afghanistan continue and that the Guantanamo terrorist prison remains open, but these are ephemeral matters compared to Obama's enormous achievements in your cause. Obama was your promised dreamboat and, less than 2 years into his first term, he has delivered for you beyond measure.

First, there was of course the trillion dollar stimulus bill. This measure alone, achieved within weeks of his inauguration, moved about 7% of the economy out of private decision making and into your hands in the government, state and federal combined. Much of this shift moved the baselines of future spending, so it is likely to be permanent. That alone, even without any of Obama's later achievements, undid and more all the baby steps towards individual control and private choice achieved by all Republican administrations and congressional majorities since Reagan. It totally and unambiguously restored all your power over the U.S. citizens back to its peak and more.

Second, and even more momentous, he delivered your health care bill. This bill will, as intended, achieve for all practical purposes a nationalization of the health care industry. Within a few years doctors, nurses, hospitals, the pharmaceutical industry and even insurance companies—if they are permitted to continue to exist in some form—will be as totally within your control and at your mercy as all components of the education industry are today. Everybody in this entire sector, constituting about one sixth of all economic endeavors in the nation, will be your client, dependent on your largess for their prosperity or even survival, as teachers and teachers' unions are today. Realizing this, they will turn out en masse whenever you need their votes, their money, and their support to take over another sector of the economy.

Third, all of this has happened within less than two years. With any luck, you will achieve the same degree of Gleichschaltung in the financial industry. But even if you do not, it seems almost inconceivable that any effective resistance to your power will remain in this nation. Thanks to Obama and his Congress, you have achieved your long-sought goal of permanently ending this nation's tradition of liberty and limited government. From the Obama administration onward, you have achieved total power and there will be nothing which you cannot control. You will be able to impose your will and your choices on the helot citizenry on every matter.

So why the discontent? The only answer I can think of is tactical. It is likely that your party will encounter a political setback in the elections in a few months. Perhaps you do not want to be too jubilantly associated with it on that day. But this will be at most a minor setback in your project and spitting on the hand that achieved so much for you is a shabby thing.