Rick Hills and Ilya Somin, two of the most respected Property Professors in the country, raise an interesting conflict as to whether the federal courts are the proper forum for the determination of state acquisitions utilizing the power of eminent domain.
Given this author, Alan Ackerman, as a Michigan and Florida practitioner, one should understand that given the Hathcock decision reversing Poletown and noted in Kelo leads this author to believe a position that the States may control property rights activities within the jurisdiction provides the stronger legal basis.
Realistically, the Fourteen Amendment was enacted to supply protection from state abuse. The abuse related to any rights of property, often decided in such cases as state mis-regulation of railroads in California in the 1880’s and extended out to the irrationality of Lochner years later.
The reality of the situation is one in which States clearly have an opportunity to self-regulate via constitutional amendment or legislative action. The potential to limit the Police Power to only non-economic activities is one which a state may retain. Ilya Somin provides a rational argument supporting the protection being one that is in the federal jurisdiction. However, this writer has a sense that federalism allows States to be the “test tubes” for activity in all the States because the Public Use is subservient to the Police Power because the police power is reserved to the States under the Reserved Powers Clause of the Tenth Amendment. But possibly the right to property use is a federally protected right even though property regulation has always been within the exclusive province of the State.
The two articles are included this and the next blog posting. Below is the Rick Hills discussion. Ilya Somin’s will be in the next blog.
“When governments regulate private property, there is always a risk of abuse and corruption.
When courts try to eliminate such governmental abuses, there is always the risk of judges creating clumsy, ill-fitting rules that make effective, publicly interested government impossible. There is no perfect way to eliminate either risk: The choice is always a matter of selecting the lesser of two evils.
Federal courts’ enforcement of federal constitutional doctrines to limit state and local governments’ power over land, however, is strong medicine, often more dangerous than the disease it purports to cure. When it comes to curbing abusive use of zoning and eminent domain, the best rule of thumb is to leave the solution to the states.
There is no doubt that state and local governments have, at best, a mixed record when it comes to controlling land. Critics who call for courts to curb governmental power frequently cite Poletown, the Detroit neighborhood condemned by the City of Detroit in 1981 to make room for a General Motors factory. Thousands of residents were displaced and churches and stores destroyed to cajole GM into creating 6,000 factory jobs that never materialized. More generally, there is always the risk that, due to inattentive voters, democratic processes will fail to protect private property from well-connected insiders who exploit public power for private gain.
But state and local political processes, while imperfect, also contain the resources to curb such abuses. Poletown is now a byword for eminent domain abuse. The Michigan Supreme Court, elected by Michigan voters, construed the state constitution to limit the use of eminent domain for economic development. Voters also amended their constitution in 2004 to impose even more stringent limits, and the Michigan legislature enacted statutory protections like awarding condemnees attorneys’ fees and requiring high evidentiary standards before land can be condemned to eliminate purported blight.”