I think there is very little question that the Interstate Commerce Clause has turned into a second Elastic Clause, providing justification for the Federal government to do anything its heart desires. It merely requires that some creative writer among the legislative staff of Congress or of a given Senator or Congressman come up with some remotely vague nexus under which the thing desired to be regulated in some way connects to interstate commerce. And the one point on which Congressional liberals and conservatives seem united is that Congress is entitled to exercise any power it feels inclined to arrogate to itself.
To be sure, many laws that the majority of members here feel to be appropriate can only be deemed valid under the Interstate Commerce Clause by such a stretch. Want to make sure that minorities are not discriminated against by private businesses offering their goods or services to the public? Absent a completely new take on the Fourteenth Amendment’s empowerment provisions, the only justification is to in some way show that the goods or services offered are in some way connected to interstate commerce. The infamous Depression Era case involving the man prosecuted for growing wheat for his own use illustrates the length to which the Courts will buy into such justifications.
Eminent domain, on the other hand, has bizarre roots. After the Norman Conquest, every square inch of land in England belonged to William the Bastard by right of conquest. Not merely that he ruled over it; he owned it. He granted the lands he became possessed of to his earls, barons, and knights who had fought for him, as fiefs. They held it in fee to him, agreeing to provide him with military service and/or money in lieu of it in exchange for his allowing them to hold it and leave it to their children.
This is the origin of the idea that people can “own” land. No one except Elizabeth II, Queen of Canada, owns any land in Anglo-America in the strict indefeasible sense. The rest of us, if we own land, hold it “in fee simple” which means that we obtained the right to hold and use that land as citizens on payment of taxes, until and unless the government decides that it needs it for some purpose.
Under the Fifth and Fourteenth Amendments, the United States and its constituent states are unable to take such land without “due process of law” and just compensation. Traditionally it has been held that such taking must be for a public purpose. Even zoning regulations must permit some beneficial use of the land to its owner, or be deemed a “taking” in effect and therefore require compensation, regardless of who continues to hold legal title to the land. If you own a clifftop piece of shore property from which people are accustomed to look out over the water, and the local government thinks that it would be a good idea to continue allowing people to do so, and forbids you to build a house on that land and erect a fence that keeps people from seeing you partying (and therefore keeps them from looking over the cliff, then they must either take the land from you by eminent domain and establish a park there, or pay you for keeping you from making use of your land.
But what constitutes a public purpose? Suppose you own a decrepit warehouse which you have boarded up and make effectively no use of. So long as you pay your taxes, it’s your property, right? What if someone wants to tear down your warehouse and neighboring properties, and build a new shopping center and subdivision there? It’s your privilege to decide whether to sell to him or not, as between you and him; he has no right to compel you to do so. What if you’re a slumlord who makes money renting substandard apartments to willing tenants who cannot afford anything better? The only right the city may have is to close down your slum entirely as unsafe … which leaves your low-income tenants homeless, hardly the desired result.
In both cases, your land can be taken by eminent domain. But the city is not interested in building a new sewer plant or a park on your land; what it wants is to see it used beneficially for economic development purposes. The new shopping center and subdivision, safe and affordable low-income housing in place of your slum; these are the sorts of things it wishes to promote. And while conceivably the city could turn your slum into a public housing project, it is in this case functioning not in a magisterial role, as a government, but in an entrepreneurial role, in competition with private business.
So there are in fact grounds which most non-libertarian citizens, liberal or conservative, would see as valid in which private property may be taken for what is ultimately a private purpose, where there is legitimate public benefit to be gained from the move.
The problem lies, as numerous pundits of all political stripes have pointed out, in the idea that there are no defined limits to such a power. Granted that the old abandoned warehouse and the slum are blights on the urban landscape, where do you draw the line? Can a city council largely elected from one political party decide that they want to take the home of the leader of the other party, offering the pretext that someone is going to make use of it in a way that they feel will better benefit the city? Why not? What’s the legal difference between that and taking the warehouse or the slum? Where do you draw the line, and why there?
The New London case opened a rather large can of worms, and it will be interesting to see the Supremes attempt to fence in those worms as they crawl across the landscape.
