Ed. Note: David Meyer-Lindenberg crosses the President and General Counsel of the Institute for Justice, Scott Bullock, one of the nation’s foremost opponents of eminent-domain abuse.
Q. As everyone knows, an unorthodox start in life is key to a good story. Paris was raised by a shepherd. Gauguin started out as a stockbroker. And Abe Lincoln was born in a log cabin. But surely no origin story can be as unusual as that of Scott Bullock, the libertarian luminary who was born in, of all places, Guantanamo Bay. Military brat? Did you move around a lot growing up? Live in any other strange and exotic places?
You attended Grove City College, a Christian liberal arts school 50 miles north of Pittsburgh, where you studied economics and philosophy. Why that combination? What did you see yourself doing after you graduated? Was law school already on your radar? “Christian liberal arts” is a pretty unusual combination; what was the intellectual climate like? Is there a reason every libertarian lawyer took philosophy in college?
A. It’s true. I was born in Gitmo, but my father wasn’t a prisoner there! He, along with my mom and brother, just felt like one, stuck on a small patch of land surrounded by Communist Cuba and only a few years after the Cuban Missile Crisis when tensions remained high. As there is really nothing to do there, it’s said that every wife that goes to Gitmo comes home with either an alligator bag or a baby. I don’t think my mom ever got the bag, but I was born there in ’66.
I wasn’t a military brat. My dad didn’t get married until he was 40 and had spent almost an entire career in the Navy, including serving in WWII and Korea, before settling down. After Gitmo, and his mid-40s, the military had one more surprise for him and sent him off to Vietnam and assigned him to the Marines. So my mother, brother and I headed back to the tough glass-making town of Jeannette, PA, where both mom and dad were raised and my extended family had lived for generations. After Vietnam, my dad retired from the Navy and I was raised in Jeannette and a city up the road called Greensburg.
My parents and grandparents didn’t go to college, but they always stressed education and learning about the world. I grew up in a working-class environment. And I think that is a benefit in public interest law, where not only are you engaging in some high-level constitutional theorizing, but also representing and having to relate to folks from all different walks of life.
One of the reasons I attended Grove City is because it was a reasonably-priced liberal arts college with a good reputation. I didn’t go because of its Christian environment. I’ve always respected Grove City’s fight against the federal government for true independence, but I’m not personally religious. The main reason why I decided to attend was to study Austrian free market economics under Professor Hans Sennholz, who taught at Grove City from the 50s through the early 90s, and who was one of four people who got their Ph.D. from Ludwig von Mises.
I had already gotten interested in libertarian ideas in high school and Grove City was one of the few places at that time to study the Austrian school. There are people sprinkled throughout the free market and libertarian worlds who have that Grove City/Sennholz connection. It’s like a fraternity, and we all swap Sennholz stories when we see each other. He was an inspiring teacher and also quite the character.
Q. You went to Pitt Law during the late 80s, a time in which the libertarian legal movement had really begun to flourish, in large part because libertarians had gotten the chance to popularize their ideas (say, by debating “judicial restraint” conservatives in environments like the Federalist Society.) So you went to law school right as a generation of legal thinkers was persuading people, bit by bit, that both judicial activism and restraint were misguided, and that courts can and must enforce constitutional limits on the state.
Where’d your outlook on constitutional litigation and the role of the judiciary come from? What about your commitment to property rights? Who influenced you?
A. As I mentioned, I got interested in libertarian ideas in high school and read a lot of the usual suspects: Milton Friedman, von Mises, Ayn Rand, Frederick Douglass, Thomas Paine, and Thomas Szasz. In college, I started attending seminars put on by the Institute for Humane Studies and the Cato Institute.
During that time, I also started reading about constitutional law and started seeing how ideas about individual liberty could play out in real flesh-and-blood cases with real people. This was bolstered by a constitutional law class I took at Grove City taught by a lawyer and professor named John Sparks. So I started becoming more focused on constitutional works, including Bernie Siegan’s Economic Liberties and the Constitutionand Richard Epstein’s seminal work, Takings.
I started to view law as a powerful way to combine both a commitment to the principles of individual liberty with the ability to actually to do something to effectuate real-world change. My primary interest has always been to advance liberty and to limit government power, and I saw the law as the most effective method to do so. I got serious about going to law school and decided that, somehow, I would build a career fighting for constitutional rights.
Q. In ‘89, as a 1L, you signed up for an internship with a new offshoot of the then twelve-year-old D.C. think tank, the Cato Institute. It was called the Center for Constitutional Studies, and it had been founded that winter by Roger Pilon, an alumnus of Reagan’s State and Justice Departments who wanted to create a place to spread and develop libertarian constitutional-law theory. How’d you hear about CCS? Why’d you decide to intern there? How’d you get the job?
As Prof. Pilon tells it, that first year, it was literally just the two of you. So what were you doing? What’s it like to build an institutional foundation for a whole legal philosophy from scratch, especially as a law student? Did he make you fetch all the coffee?
A. I’m a member of probably the last generation that found out about opportunities through reading dead-tree periodicals and hearing about things through word of mouth. I had read in Reason magazine about the work IJ co-founder Clint Bolick (now Justice Bolick of the Arizona Supreme Court) was doing at a tiny shop he had just started called the Center for Civil Rights. I called him about a summer internship. He told me that he could only take on a second year law student at that time, but that Cato had just opened a constitutional law center and that I should get in touch with Roger. That’s exactly what I did and he offered me the job as his first intern.
Working for Roger was an outstanding experience, not only intellectually but also as an introduction to the sometimes-odd ways of the Washington, D.C. policy, political, and legal communities. Because Roger was busy getting the Center off the ground, he gave me a lot of responsibility early on, including doing all the research for and helping design the inaugural conference for the Center on abuses of the RICO laws.
Q. After you graduated from law school in ’91, you signed on with another brand-new libertarian outfit: Chip Mellor and Clint Bolick’s Institute for Justice, where you’ve worked ever since. In contrast to Cato, which doesn’t sponsor litigation, IJ was conceived as a public-interest law firm. It actively takes on people’s cases in order to promote individual freedoms, especially economic and property rights.
Why IJ? What was your job when you started out? Did they throw you right into litigation? What was your first time standing up in court? How’d you cut your teeth, become the top property-rights lawyer you are today?
A. Let me back up for a moment. After the fulfilling experience with Roger, I did reach out to Clint again and I clerked for him after my 2L year, which further cemented my desire to do constitutional law for a living (without quite yet knowing how that might be possible). Clint and I hit it off very well and I got to work on path-breaking cases that summer, including the constitutional defense of Milwaukee’s voucher program, the first of its kind in the country. Clint took me out to lunch that summer and told me that he and an old friend, Chip Mellor, were trying to start a new public interest law organization and, if they were able to get it off the ground, he would love to have me join them.
When I was wrapping up law school in the spring of 1991, my fellow classmates started asking me: “What are you going to do?” I had never signed up for job interviews to work at a law firm nor stepped into the placement office of my law school. I was determined to find a way to practice constitutional law and protect individual rights. So when I told my classmates that I was going to work at a brand new libertarian public interest legal group, they said: “What’s it called?” I said, “Well, we don’t have a name yet.” And then they asked: “where are the offices?” and I said that we don’t have offices yet.
But we did choose a name and get an office and we opened our doors in September of 1991. At that time, it was just me and our two co-founders: Chip and Clint, and a couple of support staff. We had one donor and one case and no one really knew who we were.
We didn’t have a track record of any kind so most government officials and their attorneys didn’t take us very seriously. So IJ was a classic very small start-up that had to build our organization and our reputation one hard-fought case at a time. The first person I ever represented was Taalib-Din Uqdah, an African-American hairbraider who was fighting the D.C. government and who turned into a classic IJ client. Despite all of the challenges in those early years, all of us shared an unyielding dedication to stand up for our clients and the Constitution and to pull out all of the stops to score victories. We were not going to let IJ fail. We thought our mission was simply too important.
And we slowly built up IJ and established a track record of success to where we are now the national law firm for liberty with seven offices spread throughout the nation, 100 employees, a $22.5 million budget, over 8,000 individual donors, and over 225 cases we have litigated.
Q. You’ve fought a lot of battles against those who’d misuse one of the government’s most awesome powers: eminent domain, which lets it confiscate private property. In a nutshell, the Framers acknowledged the extreme importance of property rights and the ease with which eminent domain could be abused by putting some pretty serious restrictions on its use. Thus the Takings Clause of the Fifth Amendment, which states that “nor shall private property be taken for public use, without just compensation.”
But since the Supreme Court’s decision in Berman v. Parker (1954), the “public use” clause has lost a lot of its meaning. For over a century, it was interpreted to allow seizures only to build structures that were publicly owned, like roads, or publicly accessible and heavily regulated (i.e. “common carriers” like railway stations.) But under Berman and its progeny – including your own most famous case, Kelo – the government only has to assert that the seizure would further a public purpose, say by helping to fight urban blight. This, of course, allows the state to take from private party X and give to private party Y for redevelopment, a situation that invites cronyism and corporate welfare. Worse, “public purpose” is just about the lowest imaginable bar for the government to clear.
What’s going on? How is it that the federal courts, in so many other ways protective of individual liberties, have abandoned their constitutional commitment to enforcing the rights of property owners? Is the Progressive Era to blame? Given that the Framers were particularly concerned with property rights, it’s more than a little odd that socialist countries like Germany offer better protection for people’s homes than America does. Where freedoms are concerned, isn’t the rest of the world supposed to look to America for leadership?
A. The evisceration of the public use requirement was part of a larger trend away from protection for economic liberty and property rights in the wake of the New Deal. But Berman was also fueled by results-oriented jurisprudence. You have to remember the times. America had won WWII and many believed that the federal government was responsible for bringing us out of the Great Depression. So the thinking was that we could now put this central planning know-how to work to remake American cities through urban renewal.
The unanimous decision in Berman was light on legal reasoning, but filled with encomiums to how governments could make cities beautiful and well-planned places to live. It was a results-oriented case that wanted to bend the Constitution so that government could accomplish all of these wonderful goals. The Court signed off on it and thus began the urban renewal juggernaut.
Of course, this turned into an enormous disaster for both cities and, in particular, for the residents of the parts of the cities that planners and bureaucrats labeled as blighted, slums, etc. James Baldwin rightly called this program “Negro removal.” (And Justice Thomas in Kelo reminded the majority and others of that biting epithet.) As Jane Jacobs, Martin Anderson, and others began to point out and what is almost universally recognized today is that the government ended up destroying actual neighborhoods that were, while poor, places and communities where people lived, formed relationships, and knew one another. Those neighborhoods were eliminated and the residents were then often housed in public housing projects. It was an enormous domestic policy disaster. Ironically, a country that has been following a similar path over the past few decades is China.
Q. IJ litigated a number of state court cases in the lead-up to the Kelo case, including in Mississippi, Pittsburgh and New York. Then you had an important early victory against eminent-domain abuse in ’98, when you and IJ’s Dana Berliner stopped New Jersey from seizing an elderly widow’s land and giving it to a certain low-key, moderately tanned casino developer who now resides in the nation’s capital.
Following Berman, state courts, including New Jersey’s, adopted the SCOTUS decision to interpret their state constitutions‘ public-use restrictions on eminent domain. As a result, it would’ve been tough to argue that abusing eminent domain to build Trump Casinos (allegedly to fight blight) was unconstitutional. Instead, you relied on state caselaw to show that what the state of New Jersey had in mind was pretextual: the primary purpose was to benefit Trump, not the public.
Given the permissive environment for the use and abuse of eminent domain, did you go in expecting to win in New Jersey and these other cases? Is it possible to connect the Trump case to Kelo? The facts here really weren’t bad. If you hadn’t won so quickly, would it have made a decent Fifth Amendment test case? Could you have distinguished it from Berman?
A. When I was in law school, we spent about five minutes on the public use requirement in the Takings Clause. Because it had been so undercut by the courts post-Berman, the professor said it was not worth spending much time discussing. One of the primary goals of public interest law, though, is to change the law and the world. So in the mid-1990s, we set out to change public use law and took on a whole series of cases to make that happen. We knew we needed to challenge two problems in the doctrine: the notion that simple economic development in the form of the supposed public benefits of increased tax revenue and jobs was a public use and also the abuse of “blight” statutes to take land from home and small business owners to give to wealthier private parties in the name of getting rid of blighted areas that often weren’t blighted at all.
Many of our colleagues played critical roles in our efforts to challenge eminent domain abuse, but my great partner in these efforts was Dana, simply one of the smartest lawyers I’ve met. She was the primary attorney on the Trump litigation and what we were doing there was looking for a pivot point to challenge eminent domain abuse. We knew the law was really bad, but we were looking for certain more limited arguments that had a chance, albeit a long one, in the lower courts, while preserving broader arguments on public use if the case went up to the appellate courts.
The Trump Plaza Hotel and Casino case had many of the same themes that came up in our later cases. A developer wanted older, highly desirable property near the water. No one was quite sure what the land would be used for. (The claimed purpose was limousine parking, but the contracts with the Trump Plaza did not place limitations on the future use.) And the government was astonished that anyone would challenge its power. Our claim in the case was that since the Trump Plaza could use the land for any purpose, the court couldn’t know that the future use would be a “public use” under the Constitution. It was a very early pretext argument, of the kind that even the Kelo majority opinion says is still viable.
Once we won in New Jersey and it got quite a bit of attention, we were inundated with requests for assistance from other property owners and we realized the scope and importance of this fight. Many of our cases, including Kelo, were about whether so-called economic development could be a public use, but then we also began to litigate cases challenging lack of due process, bogus blight determinations, and other violations. We took on as many eminent domain cases as we could handle with a goal toward transforming the law in this area.
Q. Kelo v. City of New London was born in 2000, when seven residents of a Connecticut town approached IJ for help with saving their homes. The New London Development Corporation, a Pfizer-connected private company with heavy ties to the city and state government, was trying to strong-arm the homeowners into selling so it could develop their land for a new Pfizer HQ, and it threatened them with eminent domain if they didn’t play ball. The “public purpose” they gave was to promote “economic development,” an even vaguer and flimsier justification than Berman’s urban blight. You decided the case was a good test vehicle for getting SCOTUS to revisit the Takings Clause.
IJ is known for its smart bets on which cases to take. So why was Kelo right to address the damage Berman and its progeny had done to the Fifth Amendment? Were the homeowners sufficiently sympathetic? Were the facts good? Was the plan always to take the case to the Supreme Court? Was the NLDC’s “economic development” justification really different enough from Berman’s “fighting urban blight” that SCOTUS would grant cert? And what if the homeowners got the chance to settle and took it, scuppering the case before it could get anywhere? How’d it all work out so well?
Finally, what exactly was IJ‘s goal? Putting the Takings Clause back on an even keel by doing away with Berman & Co. entirely? Keeping “economic development” from joining anti-blight measures as a valid kind of public use? Bringing the evils of eminent-domain abuse to the attention of the public?
A. We always select our clients carefully. And Kelo was no different. We only chose those New London homeowners who were truly dedicated to keeping their homes and who would not crack under the stress of a long and hard-fought eminent domain case. And that’s exactly what happened. All seven owners stuck together through over six years of litigation despite the horrible actions of the city and the New London Development Corporation and the pressures of litigation and life itself.
The case had all of the elements of a great public interest case: a simple but cutting-edge legal issue (is economic development in the form of higher taxes and increased job growth a public use?), sympathetic clients, and villains that acted in a way that underscored everything wrong with eminent domain abuse.
We look at all of IJ‘s cases as potential vehicles to the U.S. Supreme Court or a state supreme court, so our cases are designed with that goal in mind. And economic development was different than the blight in Berman or the oligopoly in Midkiff. At least in those instances, there was arguably some type of problem with the current uses of the land. In Kelo, the Fort Trumbull neighborhood was just a typical older, working-class neighborhood and the city wasn’t relying on the current uses of the land as a justification for eminent domain. It was instead claiming that other people could make more productive use of the land in an imaginary future. It was a vision of eminent domain without any limitation, since someone could always come up with a more productive use of your land than what you’re making of it.
That’s really what we were asking the Court to do in Kelo—to establish some outer limit on government takings. That’s why I started my argument in the case by stating: Every home, church or corner store would produce more tax revenue and jobs if it were a Costco, a shopping mall or a private office building. So we knew that even if the Court might not be willing to overturn 50 years of jurisprudence, it could still rule in our favor and we provided the arguments for it doing so. I think we took the right approach, since only Justice Thomas was willing to go back and reexamine Berman and Midkiff. (He was right to do so, of course, but we knew we had to try to get to five votes.)
In addition to winning on the legal claims, throughout our fight against eminent domain, we raised public awareness of this issue through a constant drumbeat of stories, articles, exposés and so forth. We published the first-ever report on eminent domain abuse, Public Power, Private Gain, which documented more than 10,000 actual or threatened uses of eminent domain for private projects in a five-year period. Then, one year to the day before the Court granted cert. in Kelo, 60 Minutes with Mike Wallace aired a hard-hitting segment on eminent domain abuse that IJ’s VP for Communications, John Kramer, was instrumental in securing. All of this public attention and outrage was also extremely important in fomenting the backlash against the decision when it was handed down.
Q. Kelo wound its way through the Connecticut lower and Supreme courts, which showed themselves willing to expand Berman and open the door to “economic development” takings. That wasn’t the end of the story, though. SCOTUS did indeed grant cert, and you, Dana Berliner and IJ were headed for the nation’s highest court.
Once the case went national, you received an outpouring of public support. Thirty-seven national organizations, including many left-leaning groups like the NAACP and Southern Christian Leadership Conference, submitted amici briefs on the homeowners’ behalf. Sadly, though, the Supremes, in a 5-4 split, came down on the city’s side. Despite a forceful dissent from Justice O’Connor (who had herself authored Hawaii Housing Authority v. Midkiff, a 1984 case that agreed with and built on Berman,) Kelo joined Midkiff and Berman as another pusillanimous federal take on the Fifth Amendment.
But again, that wasn’t the end of the story. The support IJ received while it litigated the case translated into outrage at the decision, and, in many places, resulted in pro-property-rights legislative action. Since Kelo, a number of states have passed laws to restrict exactly the kind of “economic development” taking that was at issue in the case.
So was it a victory after all? Did IJ accomplish what it set out to do, even if you didn’t outright win the case? More broadly, have state legislatures done enough to rein in unprincipled and abusive takings, or are what laws there are now just for show? Have any state legislatures gone beyond the “economic development” takings at issue in Kelo and banned Berman-esque anti-blight takings? It’s now twelve years after Kelo. Does the public still support eminent-domain reform?
A. As the great Fats Waller once said: “One never knows, do one?” That’s true of a lot of things in life and it’s definitely true with regard to Kelo. Kelo was the worst thing that could have happened to supporters of eminent domain. The backlash was more like a tidal wave. IJ launched its Hands Off My Home campaign within days of the Kelo decision. Forty-four states changed their laws to make eminent domain for private use more difficult. Public polling about the decision ran between 80 and 90% against.
In many ways, we got more out of the Kelo loss than we would have gotten out of a win. Many states passed very strong laws, limiting the definition of public use even more than we had asked for in Kelo. Also, one of our concerns with Kelo was that even a victory in the case would not address the problem of eminent domain abuse to take supposedly “blighted” neighborhoods—that wasn’t an issue in the Kelo case at all, so a victory wouldn’t have cured that problem. But 25 states narrowed their definitions of blight in the wake of the Kelo decision. For many Americans, their rights are protected more now than before Kelo and more than they would have been even if we had won.
The problem is that there are some states that are still abusing eminent domain terribly, and Kelo could have stopped that. New York and New Jersey are the worst right now. Other states have so-so reforms that need strengthening. We still want to get Kelo overruled, and we will be trying to get back to the U.S. Supreme Court so that everyone’s rights can be protected, throughout the country.
Q. Finally, there are the state courts. As the Kelo majority went to some pains to point out, even if the federal Takings Clause allows the use of eminent domain for the sake of “economic development,” state courts are free to decide that state constitutions grant greater protections. Fortunately for America, and thanks in no small part to you, that’s exactly what did happen.
You and Dana Berliner litigated IJ’s first big state court win after Kelo, Norwood v. Horney, where you persuaded the Ohio Supreme Court to outright repudiate Kelo and declare “economic development” takings unconstitutional. Oklahoma and South Dakota followed suit. How come? Doesn’t the courts’ willingness to go their own way on this contrast rather oddly with their behavior after Berman? What changed? Is there yet hope that the rebellion against “economic development” takings will spread more generally? If not at the federal then at the state level, is the Progressive Era embracing of eminent domain finally on its way out?
A. You are absolutely right that state courts’ reaction to Kelo was the exact opposite of their reaction to Berman. State courts accepted Berman almost without thinking about it, but they have taken very different approaches to Kelo. Some courts have rejected it outright. Every state court (except New York’s) has applied much more scrutiny to questions of public use in the wake of the Kelo decision. That’s been really refreshing to see.
Part of the reason for this was of course the public backlash, but the other part is that state courts, overall, are giving a lot more weight to their own constitutions instead of just following federal constitutional interpretation. The next several years will be very important, as local governments are beginning to try to use eminent domain more as development is starting to pick up. Political figures often fail to learn the lessons of history, so we have to be there to remind them and to make sure to stamp on any new efforts to abuse eminent domain.
Q. In 2016, you became IJ’s President and General Counsel. During your 25-year tenure at the Institute, you’ve spearheaded numerous campaigns in defense of Americans’ civil liberties; for example, in addition to eminent domain, you’ve taken a leading role in the fight against the abuses of civil asset forfeiture. Meanwhile, IJ’s grown into one of the nation’s foremost public-interest law firms. And when it can’t take on a case itself, it’s put projects in place to help people stand up for their own rights.
Where’s IJ headed next? And what are your long-term goals now that you’re at the helm of the outfit? The next few years show every sign of keeping civil libertarians busy. What’s the next big fight? What’s next for Scott Bullock?
A. Civil forfeiture is a great example of how we can take an issue from relative obscurity to national prominence using all of the components of public interest litigation: litigation, legislation, strategic research, activism, and communications. We’ve made civil forfeiture a top priority in our work to restore constitutional protections for private property rights. Although much work remains, the momentum around civil forfeiture is undeniable and the progress in challenging this outrageous power is very encouraging.
In the years ahead, we will remain committed to the four pillars of our mission: economic liberty, private property rights, school choice, and free speech. But we will also stay on the cutting edge of both the issues that we take on and the strategies we employ, because governments are always finding new methods to grab more power at the expense of liberty.
Today, IJ is a force to be reckoned with. When we get involved in a case, governments everywhere know that they are going to face the full force of IJ in court and in the court of public opinion. It’s safe to say that we ruin a politician or bureaucrat’s day and possibly their year every time we file a case. But now we see more and more governments backing down when we get involved in a case. That’s great for our clients and the cause, but it decreases the likelihood of establishing a judicial precedent, our ultimate goal. So we are doing more class-action lawsuits, which both broaden the impact of a case and increase the likelihood of securing a decision even if individual clients obtain relief before the end of the case.
We are also exploring new areas for IJ involvement, including bringing more cases in the medical realm, challenges to the Administrative State, challenging systematic violations of due process by local governments, and exploring avenues to expand Fourth Amendment rights through a more property rights-based approach.
We know from history that no matter who gets elected, government power will likely grow. That is certainly true on the federal level and it’s true on the state and local levels as well. We don’t discriminate in the type of government we challenge because every agency, every bureaucrat, every politician, no matter where they might be, has the capacity and too often the willingness to abuse their power and violate the constitutional rights of individuals. So IJ will be there. We will remain determined advocates for the Constitution and we will continue to represent brave individuals who are willing to give new life to the guarantees contained in that indispensable document
I feel very fortunate to be able to lead an organization that has an excellent mix of experienced and dedicated old-timers along with younger and incredibly talented staff who possess that same burning desire to fight for liberty and to change the world. IJ is perfectly positioned to take on new challenges to liberty in the decades to come.
Thanks very much for the opportunity to participate in Cross!