The reaction to the U.S. Supreme Court’s decision last June in Kelo v. City of New London has largely been edifying. Most commentators, and even many politicians, have greeted with horror the news that local and state governments are free to take property from one private owner to give it to another, as long as the transfer serves the “public good”—defined, of course, not by the person whose property is being seized but by the government doing the seizing. A majority of states have introduced legislation to counteract the effect of this decision (though, as of this writing, few if any have actually passed such legislation), and several bills are being considered in Congress that would penalize states that did not voluntarily restrain themselves.
Oddly, though, some praise for the decision—however guarded—has emerged from unexpected quarters. While we might expect some libertarians to cheer any ruling that, in practice, will increase the power of developers and of the nationwide businesses that fund libertarian think tanks, conservative support for the opinion is somewhat more surprising. Some conservative commentators, however, have seen Kelo as the first major attack on the Incorporation Doctrine, by which the restrictions of the Bill of Rights (originally applied only to the federal government) have been extended to the states.
Even if that is true (and, if so, it was certainly not what the Court intended), it is a limited reversal of the Incorporation Doctrine that, in some ways, is worse than no reversal at all. Kelo is a nearly perfect example of the kind of federal action that we have seen for nearly 40 years now, which goes under many names—revenue sharing, the “New Federalism,” unfunded mandates. Under all of these, the federal government seemingly devolves some power back to the states and localities, but, in the process, severely restricts how that power can be used. Such restrictions may take the form of, say, limiting highway funding if a state chooses not to enact a certain maximum speed limit or allowing states greater latitude in resolving environmental cleanup issues, as long as the final cleanup is conducted according to federal standards.
In Kelo, however, isn’t the Supreme Court actually returning power to the states and localities and expanding the scope of that power, by allowing them to do something—transfer property from one private owner to another—that, in the past, the federal courts would have prevented? Yes, but that is not the whole story. In removing the power of the federal courts to rule on the legality of a state or local eminent-domain proceeding, the Supreme Court also defined the terms under which those proceedings can take place. Previously, no state constitution allowed the exercise of eminent domain for anything other than “public use.” In other words, the property had to end up in the hands of the government. That is not to say that some states and municipalities hadn’t pushed the boundaries—both Pittsburgh and Rockford, Illinois, have had notable cases over the past few years that never made it to the Supreme Court, and, of course, there is the infamous 1981 Poletown decision, in which the Michigan Supreme Court ruled that Detroit could raze an entire neighborhood to give the property to General Motors to construct an assembly plant. These, however, were the exception, not the rule; under Kelo, that is no longer the case.
Ironically, the Michigan Supreme Court had reversed the Poletown decision at the end of July 2004. In County of Wayne v. Hathcock, the Michigan Supreme Court unanimously declared that “We overrule Poletown in order to vindicate our constitution, protect the people’s property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.” A little over ten months later, the U.S. Supreme Court handed down Kelo, declaring, in essence, that the Michigan Supreme Court had been mistaken—in Hathcock, not in Poletown.
This ability of the federal government—courts, Congress, executive agencies—to define the terms of state and local action, expanding it as well as restricting it, is why we have seen the recent spate of state legislation concerning eminent domain post-Kelo attempting to return the power to its traditional limits. If the federal government were not still defining the debate, none of this legislation would be necessary. But why hasn’t any of this legislation actually passed?
The simple but sad answer is that states and localities, even if they claim otherwise, are perfectly happy to let the federal government determine the limits of their powers. There is something very liberating about being able to say, “We’d like to do this, but the EPA won’t let us.” And, even more to the point, there is great political cover in being able to say, “We think it is wrong to take this house, which has been in this family for four generations, to give to Wal-Mart, so they can build their fourth Supercenter in a ten-mile radius, but the Supreme Court says that this is allowed, so what can we do?”
Federal regulations allow states to pass the buck on up to Washington, D.C. For localities, state regulations perform the same function. Several months ago, here in Winnebago County, Illinois, an Indian Muslim petitioned the county board for a special-use permit to allow him to open a Muslim slaughterhouse just outside the city limits of Rockford. Despite the fact that no one considered this an appropriate use for this location, few members of the county board wanted to touch this issue. And so the board voted 19-5 to grant the special-use permit, arguing that they could not do otherwise, since the petitioner had declared that he would comply with state and federal regulations concerning the operation of a slaughterhouse. And yet, of course, the power to stop the slaughterhouse did not rest with the federal government or with the state of Illinois, but with the Winnebago County Board, since this was a request for a special-use permit—in other words, the county had to suspend its own zoning regulations to allow it, and federal and state regulations provided it with the political cover to do so.
This is the great danger that Kelo represents. In almost every case, the corporation or developer who will ask a local government to exercise eminent domain on his behalf will be able to afford more political clout than the person who currently owns the property, and he will likely be able to demonstrate that his use of the property will result in higher tax revenues for the local government. The local government, acting in its own interests rather than the interests of the people it represents, will be able to throw up its hands and say, “The Supreme Court says it’s OK,” while uttering a silent prayer for the long life and continued good health of the Kelo majority.
We have seen something similar play out in the expansion of free trade over the past 30 years. American multinationals and other large, publicly owned corporations have successfully lobbied Congress and a series of presidents to negotiate and sign a number of trade agreements that have made it easier for them to move production down to Mexico or overseas, where they can take advantage of lower labor costs and less oppressive environmental regulations to slash expenses. Then, when someone draws attention to the decline of American manufacturing—a decline that coincides with the era of trade agreements that they lobbied for—these same corporations point the finger at the very government that made their actions possible, claiming that federal taxes and environmental regulations and laws protecting trade unions have made it impossible for them to keep their operations in America and arguing that they are simply taking advantage of treaties that the federal government signed, conveniently leaving out the role that their lobbying money played in getting the treaties drafted in the first place. Caught between a multi-billion-dollar corporation and a distant federal government, the average worker and his family have no recourse.
That question of distance, which is another way of expressing the problem of scale that Donald Livingston discusses in this issue, can often make it harder to solve a political problem, and not only because it allows those involved to renounce their own responsibility. Take, for instance, environmental regulation, which, in more cases than we might care to admit, has had adverse environmental effects, because it has alienated the very people who should be at the forefront of environmental stewardship—namely, property owners.
Man’s proper relationship with the physical world is one of cultivation. Those who understand the basics of organic gardening know that composting is not simply an efficient way of recycling kitchen scraps. Every year that an organic gardener places compost on his soil, he improves it at a rate a hundred times faster than Mother Nature herself would. He is able to do this because of the rather intimate relationship that he has with the land that he is working, a relationship that an industrial farmer, spraying pesticides on several square miles of land from the cab of an air-conditioned supertractor, could never have. As for an EPA bureaucrat who lives in an apartment building in Washington, D.C.—well, the problem is obvious.
When the very soil in my backyard garden falls under environmental regulations promulgated by unelected bureaucrats in Washington, D.C., we might call this “Think globally, act globally.” Centralized regulations, by their very nature, treat Portland, Maine, the same as Portland, Oregon, and Harbor Springs, Michigan, the same as Pearl Harbor, Hawaii. That is not good stewardship. The idea of Congress passing an environmental law that applies equally to the two Portlands is as nonsensical as me trying to exercise good stewardship over my uncle’s land in Wyoming from my home in Rockford, Illinois. I cannot do it; it isn’t physically possible, and, more importantly, it isn’t morally possible. Why? Because I care more for my own land than I ever could for my uncle’s. Why? Because it is mine—or, more accurately, it is a part of me and of my family. To ask me to provide equal stewardship to my land and to my uncle’s is as wrong as asking me to love his children as if they were my own. I cannot do that, and, morally, I would be a bad father if I did.
Many environmentalists are fond of the slogan, “Think globally, act locally.” In other words, think of global warming and use your car less; think of overflowing landfills and recycle. But the potential impact on the global environment that any person or family would make with these actions is minimal—less, perhaps, than the impact made by the beating of a butterfly’s wings, which are fabled to be able to cause a hurricane on the other side of the world. Trying to convince people to engage in such behaviors for global reasons will never go very far, because moral activity is ultimately a question of acting on a human scale.
Most people intuitively realize this—this is, after all, why Sally Struthers does not ask you to send money to help all the starving children in Africa but promises that all of your money will be used to feed a single child, whose picture you will receive. But that intuitive realization is being drummed out of us by the constant attempt to make everything a national or international problem—race, education, the environment. It is not enough to treat everyone we meet with respect; we must, we are told, learn to love people we have never met and never will meet as much as we love our neighbor. It is not enough to ensure that our own children have a good education, and to pay for it; we must ensure that there is “no child left behind,” and if that means more federal taxes to equalize funding between the poorest school district in Mississippi and the richest one in Connecticut, then the folks in Connecticut will just have to pay twice. And it is not enough to cultivate our own land and to refrain from activities that harm the world we live in (which is much smaller than the world we live on); instead, we must care deeply about the snail darter and the spotted owl and other creatures that have never set feather nor fin in Illinois, and we must pay the federal government to clean up environmental damage that others have created—often with the prior blessing of that very government.
Farmer, poet, novelist, and environmental essayist Wendell Berry argues that we should “Think locally, act locally,” which drives home the point that moral action always has to be on a human scale. If I put as much effort as I can into rearing my children well, I might succeed; if, however, I spend my time worrying about how you are rearing your children, or how children are reared in China or Ethiopia, my children will probably suffer. It is no coincidence that some of the people who have devoted their lives to running around the country, delivering lectures on family values and the best way to bring up other people’s children, have failed with their own.
Those who “think globally, act globally” can have very real local effect—often destructive. Up until the creation of the intercontinental railroad, most meat was processed at a very local level—at your own back door or perhaps in the nearest town, by a butcher you knew personally. The railroad, however, allowed for the mass transport of cattle, and the raising of cattle became fairly centralized. This meant that the meat-processing industry became centralized, too, in cities such as Chicago, which had huge meat-processing plants right at the stockyards. The centralization of meat processing led to a number of health problems, and eventually Upton Sinclair wrote his famous exposé of the conditions at meat-processing plants. Setting aside the question of how much of The Jungle is pure fiction, the book led directly to federal regulations on meat processing that imposed severe financial burdens on meat processors, which led to further centralization of the industry as smaller processors were priced out of the business. Today, meat is processed hundreds, even thousands, of miles away from where it will be eaten, and such life-threatening bacteria as salmonella and E. coli are abundant in our meat supply, in part because of the distance that the meat must travel. Meat production is among the most heavily regulated of industries, and yet thousands of people die every year in America from contaminated meat, and the Centers for Disease Control estimate that cases of meat-related food poisoning run into the tens of millions every year.
As legislation and regulation become more centralized, they are more likely to have unexpected consequences. One consequence of the Superfund legislation of the past 30 years has been the abandonment of many industrial areas of cities. As companies leave such areas (perhaps because of the effects of free trade), others refuse to come in, knowing that the federal government may come along at any time and demand that the new owner pay to clean up the previous owner’s pollution. Instead, companies do what they have done in Rockford: buy up virgin land that has not been polluted—farmland, for instance—and build their factories and stores. Partly because of this unexpected effect of Superfund legislation, the United States has lost millions of acres of farmland over the past 30 years.
Broadly speaking, law serves two related functions: to codify the moral sense of a community, and to restrain people’s impulses (or, more accurately, to punish people who refuse to restrain their impulses). Historically, healthy societies have had relatively few laws. Cultural institutions have acted as a sort of prior restraint on people’s actions. It is only when a community begins to dissolve that legislation really multiplies. One could probably track the decline of American society more accurately by graphing the number of laws that Congress has passed in each term than by consulting Bill Bennett’s Index of Leading Cultural Indicators.
Today, in an America divided into Red and Blue, there is no real national consensus on any issue—and, frankly, how could there be? The United States is far too large and diverse to be a “village,” as Hillary Clinton would like it to be, or a “shining city on a hill,” as Ronald Reagan used to call it, borrowing from the Puritans. Consensus, however, is still possible at lower levels. The Rockford City Council or the Winnebago County Board can craft policies that represent the broad consensus of the residents of Rockford or of the county, and they can observe, up close and personal, the results—expected and unexpected—of those policies.
If our hope lies in local action, isn’t Kelo a step in the right direction? After all, local governments do not have to use the expanded powers that the Supreme Court has granted them. Unfortunately, human nature means that they probably will. As long as local officials can abjure responsibility for their own actions, those with money and influence will provide them with incentives to do so.
What we need is for the U.S. Supreme Court to vindicate the U.S. Constitution by reversing Kelo with its own Hathcock. Let’s hope that it does not take as long to achieve that result as it did in Michigan. While it may be true that decentralized government can only accomplish limited good, history has shown beyond any doubt that highly centralized government can cause almost unlimited destruction.