A lot of very progressive people, including several of my friends, seem to be displeased with the Supreme Court's decision yesterday in Kelo v. New London, ruling that the city does have the right to take private property for an economic redevelopment plan. On the surface, the case looks to a lot of people like it's about corporate interests attempting to take away people's homes for their own selfish purposes.
The court's decision, which fits well within established legal precedent (apparently many court-watchers were surprised they took the case to begin with), was exactly right.
But before I get to the substance of the matter, there's a few facts which should be clues for any progressive as to which side to take. First, the case was brought by the libertarian Institute for Justice, the litigation arm of the "Constitution-in-exile" movement (recently profiled in a very scary New York Times Magazine cover story), which quite literally wants to overturn the twentieth century ("in exile" refers to the alleged misinterpretation of the constitution in allowing the New Deal). Second, that all four liberals (Souter, Bryan, Ginsburg, and Stevens) on the court sided with the majority, and that the tree troglodytes (Rehnquist, Scalia, Thomas) dissented.
So the cast of characters should already have us raising eyebrows. But beyond that, consider the basic constitutional question at issue. The power of eminent domain, under the Fifth Amendment, allows governments to take private property (so long as the owners are fairly compensated) for "public use". Here's a gut check: when phrases like "public use" and "common good" are at stake, do we want them interpreted broadly to allow an activist role for government, or narrowly so as to serve private property interests?
We as leftists are defined largely by our desire to use government as instrument of social change, especially when it comes to economic mattters. That means, as a general rule, that we want the government to retain broad powers to pursue the public interest. Eminent domain is one of those powers -- a sometimes necessary tool for government to guide economic development, rather than sit back and watch while the market leaves urban neighorhoods blighted while building Walmarts and McMansions in the hinterlands.
And yes, sometimes that means that property taken for the purposes of economic development will be sold to developers. Why? Because most municipalities lack the political and financial capital to become landlords themselves.
Have governments sometimes used eminent domain badly, to serve the wrong interests? No doubt, just as the Bush administration has used most of the constitutional powers available to it (and some that aren't) rather badly. But that's not cause to give up on government -- it's cause to elect political leaders who will do a better job.
For more on the case, see Nathan Newman's postings here and here.
Posted by Michael at June 24, 2005 02:05 PM | TrackBackHey Michael, I found your blog courtesy of Boyd and thought I'd post my response to you here for your reply:
I agree with you in principle on eminent domain. At issue here is the distinction between public and private and the way by which the discourse on
"public good" is mobilized to serve private interests. Do the number of new jobs and economic benefits offered by the construction of a private conference hotel and a pharmaceutical research center owned by Pfizer amount to public service? I'm suspicious.... If we're talking about a public hospital or a public school, that's another matter.
Let's not forget that this development plan affects an economically-, and hence, politically-, disenfranchised community. Would something like this happen on the shores of Bottle Bay? Likely not. I agree with O'connor's claim--oddly
enough--that the unlegislated exercise of eminent domain affects primarily poor communities, and not beneficially. The age-old argument that the promulgation of private enterprise is a service to the public good is the same argument that justifies the building of Wal-Marts in the middle of already thriving locally-owned business districts, driving small businesses into the
red. (It's true that Wal-Mart offers more jobs than Joe Schmoe's Hardware, and makes a lot more money for itself, but are those jobs better jobs, and does the capital made by Wal-Mart really go back into the community? Of course not!)
I agree with you entirely that the rights accorded to local governments through eminent domain are important, but a distinction needs to be made--perhaps at the level of the courts; I don't know--as to what constitutes private business
for the public good. John Paul Stevens' claim that "there is no basis for exempting economic development from our traditionally broad understanding of public purpose" strikes me as well-intentioned but incredibly naive: certainly,
we don't need to exempt economic development as a category of public utility, but we do need to qualify it. I'm not so sure the court's dissenting opinion did that, but it was on the right track by alluding to it, in my opinion....
Finally, on a bit of a side-note, the way this decision plays to the public in the media can be nothing but disasterous for its (liberal) advocates. Plain and simple, people don't want to see other people kicked out of their homes by the
government, significantly when they are guilty of no wrong doing. The image is a metaphor for everything that is horrible about Big Brother, and about liberalism more generally. It can only make people despise public institutions more than they do, which, in theory, should make people want to reform public institutions, but which, likely, will make them want only to bankrupt them into
oblivion, as Bush is doing so well.
Also, your contention that those on the left are united by their desire to affect social change through the state omits the anarchist left, which shares *some* affinities with the (mostly whacko) libertarians who brought this case to the court, yes?
Posted by: Pete at June 28, 2005 10:23 PMI agree with many of your broad concerns about abuse of power and discourse about private enterprise and the public good ("what's good for GM/Pfizer is good for America/New London").
But no one in New London elected the Supreme Court to second-guess their economic development plans, however unwise or unfair they might be. These are fundamentally political and policy questions for elected legislatures to determine.
In my book, Stevens is dead on. Economic development (which almost always involves preferential treatment for someone) is a valid end of government, and ergo qualifies as a "public use" under the 5th Amendment. The only constituional question, then, is whether the project is actually aimed at economic development:
... the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party ... Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development plan. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. (emphasis added)
What we want, then, is for governments to go about pursuing economic development in the most just and effective way possible. Many progressive policy leaders use the phrase "High Road" to describe economic development strategies which are environmentally sustainable and promote living-wage jobs. So it was with some interest that I discovered a report on that subject, "Building the Bridge to the High Road", which specifically discusses using eminent domain for such purposes, as happened in New Bedford, MA:
UE Local 277 represented the workers at Morse Cutting Tool, an anchor company in the coastal town of New Bedford, MA that made twist drills to be held by the tool holders made at Scully Jones. In 1968, Morse Cutting Tool was purchased by Gulf + Western (G+W). In 1981, a dramatic shift in management policy signaled impending demands for wage and benefit concessions and threats that the firm might shut down. ... [A local UE staff member] turned to the Industrial Cooperative Association (ICA) in Somerville, MA, a then-new consulting firm inspired by the Mondragon model to help workers build cooperatives.
ICA did a study of G+W's management of Morse Cutting Tool that documented its business strategy of "milking the cash cow"--draining the company of cash for use in other acquisitions. They showed in detail how this viable, profitable company that employed hundreds of workers was being destroyed by G+W's narrow corporate approach. ...
The consequence was obvious. The union documented what the impact of the closing would be on the small town. It went door-to-door and organized a broad coalition of local organizations. Armed with community support and a detailed analysis of G+W's wrecking methods, the union went to Mayor Brian Lawler and persuaded him to use the state's power of eminent domain to prevent G+W from closing Morse Cutting Tool.
The mayor told the company, "Either invest in Morse Cutting Tool, or sell it to someone who will, or I will take it away from you with my powers of eminent domain." The press howled that this stand would wreck the business climate of New Bedford as well as the company. But it didn't. G+W reversed its plans and sold the company to a local investor who developed an effective partnership with the union.
You're right about the way this decision has played with the public. One solution is to publicize examples such as the above (which I doubt Scalia would approve of), but there a broader point to consider: the politicization of the courts. As we are about to discover yet again with the Supreme Court confirmation battle, there are serious dangers in viewing the courts as just another political arena -- another venue to try anytime you can't prevail through ordinary means. By treading carefully with its power of judicial review, the Court can help to defuse this tendency, which has given the faux-populist right wing the very effective bugaboo of "judicial activism."
As for the anarchists, was it not Proudhon who wrote "property is theft"?
Posted by: Michael at July 1, 2005 02:34 PM