Kelo and Marxist Class-Based Schadenfreude — A Stitch in Haste, 10/13/04

A repudiation of the opinion by Bruce Fein (see the above item from The Washington Times)

by Kip Esquire

Some hasty stitches:

1. Fein gets it wrong from his very first sentence: The Kelo challenge, and the Hathcock decision in Michigan which inspired it, are not about drawing class-based lines in the sand regarding eminent domain. They represent a wholesale repudiation of any expansive definition of "public use" (more on that below). No hypocrisy, no double standard. Just a simple "this is wrong." Fein repeats this fallacy throughout the piece, without a single primary source to support his assertion.

2. For a "constitutional lawyer" (Fein's self-description) to ever use the phrase "constitutionally irreproachable" is downright terrifying – has Fein never heard of Brown v. Board of Education?

3. Similarly, Fein misses the point in comparing Kelo to Berman. The far more relevant comparison is to Wayne v. Hathcock, the trailblazing repudiation of expansive "public use" by the very court that started the whole mess: the Michigan Supreme Court, whose monstrous holding 23 years ago in Poletown v. Detroit was the hook upon which all the eminent domain abuse Fein purports to lament was hung. If Fein is truly concerned about not displacing the poor in their "blighted housing," then he should be among those screaming the loudest for federalizing Hathcock. But of course his concern is not for helping the poor, but rather for hurting the not-poor (i.e., naked Schadenfreude).

4. The idea that Fein could invoke Adam Smith with a straight face is beyond amazing. The whole point of "The Wealth of Nations" and its progeny was to show that individual decision-making tends to lead in the aggregate to optimal allocation of resources. Adam Smith's thesis was that people should be left alone to make their own decisions – that citizens and not government should control property – even if all you really care about maximizing output and welfare rather than respecting individual rights.

5. Fein is his own worst enemy in another way. He spends most of the piece invoking (tongue-in-cheek, to some extent) the "just compensation" element of the Takings Clause, but conveniently glosses over the other, more important element with respect to Kelo, namely the "public use" requirement, which is exactly the nexus of the debate. In the one passage where he mentions it, he actually winds up arguing against his very thesis. He writes: "A public development corporation would use the acquired properties to build hotels, new residences, office space, public walkways, and retail space." Translation: "Private, private, private, worthless, private." How again is that a "public use" warranting trampling property rights? Incidentally, who would benefit from such an eminent domain action – Fein's despised middle class or wealthy corporate developers (does he somehow hate the rich less than the middle class)? Go figure.

When Adam Smith wrote of the "invisible hand," he didn't envision it carrying a sledgehammer. The Supreme Court has an historic opportunity to stop a runaway government abuse that has wreaked havoc and heartache for decades, and not just for the poor.

Fortunately there aren't many Marxists on the Court, so hopefully nonsense thinking like Fein's will be summarily discarded.

A Stitch in Haste: www.kipesquire.blogspot.com