POLETOWN

A reader called my attention to the PLF / ACLU tag-team brief (PDF file here, press release here) in the Michigan case of Wayne v. Hathcock. The brief asks the Michigan Supreme Court to overrule Poletown, a 1981 case which allowed municipal authorities to condemn land (and displace a community) in order to give it to General Motors to build a factory.

Note in particular the argument of the brief at pages 11 - 16: the expansion of eminent domain puts the politically unpowerful at greater risk of having their property taken than the politically powerful. I like this argument, but I think I like it more than the folks at PLF. A broader perspective is also important here, given PLF's general unwillingness to distinguish (as a principled matter) between property rights held by the powerful and those held by the unpowerful. In other words, for PLF, the condemnation is not bad because the politically weak are affected; it's bad because it's an invasion of property rights that are defined, as a theoretical matter, irrespective of the holder. Thus, it seems to me that it's important to distinguish between Poletown and Midkiff, for example, in which which the Supreme Court rejected a challenge to the Hawaiian Land Reform Act of 1967, in which tenants could ask a board to condemn the property for the purposes of allowing them to buy it from the landlords (through a circuitous route, to be sure, since the tenant was technically buying the land from the state, if I remember correctly) at fair market value.

My guess would be that PLF would think that both Midkiff and Poletown are bad because they represent the use of state power to "take property without just compensation." If I'm wrong here, please let me know. Nonetheless, the history of Hawaii -- the extraordinary concentration of political and economic power produced by the process of colonization combined with the inflated housing prices resulting from the growth of the tourist industry -- conspired to prevent widespread land ownership. This is a problem that the legislature was right to attempt to rectify through the Land Reform Act, in my view.

At the very least, taken together Midkiff and Poletown show that it is critical to consider the social context of property rights in these kinds of cases. A focus on relative political power is part of that consideration, and I'm happy that PLF is willing to take it up in [its challenge to] Poletown.