Stadtluft macht frei?

Cross posted at Political Arguments.

A few weeks ago Will Baude observed that the Connecticut legislature was taking steps—however provisional—to limit eminent domain in the wake of the Kelo v. New London ruling. Now the New York Times reports that the anti-Kelo trend seems to be spreading.

¶ Well, it would really be a pro-Kelo trend, no? You get the point. Or perhaps you want me to put 'everything' in 'scare quotes' for 'you'.

SANTA CRUZ, Calif. - More than a month after the Supreme Court ruled that governments could take one person's property and give it to another in the name of public interest, the decision has set off a storm of legislative action and protest, as states have moved to protect homes and businesses from the expanded reach of eminent domain.

In California and Texas, legislators have proposed constitutional amendments, while at least a dozen other states and some cities are floating similar changes designed to rein in the power to take property.

Still, some cities have taken bolder measures to expropriate property, presumably before the state has time to take preventive action. Will pointed out two-weeks back that,

[E]ven those of us who believe in some judicially enforceable limits of the states against the national government tend not to get worked up about the rights of municipalities. I think some degree of decentralization is wise, but it doesn't bother me at all that under many state constitutions, a municipality exists completely at the sufferance of the state government. Maybe it should, and maybe it will, but it doesn't.

It strikes me that, so long as cities and municipalities are conceived as governments within a constitutional system, there are prerrogatives that they should not be allowed to exercise. Taking property for private gain is arguably one of them. The same dangers of abuse of power and undue coercion are present whenever a state entity assumes the monopoly of legitimate violence, and it probably matters less whether the state police or the city police go enforce an eviction order, than that the [police, of any sort is involved.

That leaves out the possibility, however, that cities and municipalities are corporate groups of a sort. Thay are incorporated, and presume of a chartered, voluntary founding. They can be left at will, even if at considerable cost to some. And there is a long legacy of city-dwellers thinking of the confines of the ville as a distinct and autonomous jurisdiction.

If the rights of municipalities are to be observed, we need a paradigmal shift from the understanding of city-as-state to that of city-as-chartered corporation. This is already happening in the form of private residential communities, but therse are considerably smaller than places the size of Chicago, New York... or even New London, Connecticut, and they have less power, both in fact and in law. They are bound by county and state law and can only wield their authority within the contraints of contract and real estate law.

I'm not clear that we should want to revert to a medieval view of the city, but we should at least consider the unstated historical and philosophical premises behind urban life.