It is usually a good thing when the liberal bloc on the Supreme Court can cobble together a majority.
Not last week.
In Kelo v. New London, the liberal majority ruled that there is virtually no U.S. constitutional restriction on the government’s power of eminent domain — the authority to take property from private parties for a public purpose.
The case involved New London’s condemnation of the perfectly upstanding residential housing of Suzette Kelo and other homeowners — one of the houses has remained in the same family for more than 100 years — in order to clear a plot for a real estate development project adjacent to a new Pfizer research facility. The new development will be entirely private. It is not entirely clear what the taken property will be used for — some of it may be devoted to parking, some will be held for future office space development. Kelo and other residents objected that the new project did not qualify as a “public” use or purpose.
But the Court ruled that, if the government says that taking residential housing and giving over the property to private real estate developers for private use is a public purpose, then constitutional requirements are satisfied.
Under the Court’s decision, if the government says it is a public purpose — if the taking is part of a broader development plan — then it is a public purpose, by definition.
Justice O’Connor, who wrote a scathing dissent that was joined by Chief Justice Rehnquist and fringe conservative Justices Scalia and Thomas, accurately predicted the near-certain results of the decision:
“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”
If you have any doubts about this, ask yourself: How likely is it that a city or state would use its powers of eminent domain on a rich neighborhood, so that it could clear that land for a redevelopment plan that would provide for desperately needed low- and moderate-income family housing?
Or, check out CNN.com’s story after the Kelo v. New London decision was issued. Title: “Eminent Domain: A Big-Box Bonanza? Court’s Ruling OKed Land Grab for Businesses Like Target, Home Depot, CostCo, Bed Bath & Beyond.” The story explains how commonly eminent domain is used to transfer land to big-box retailers. Pretty much the only restraint on pushing for these kinds of takings, the story says, is fear of public backlash.
Or, look at the amicus brief filed in the case by the great urbanist Jane Jacobs. She emphasizes the long history of misuse of eminent domain, and that the victims are always the poor and powerless: “Large scale use of condemnation for development purposes began with the ‘urban renewal’ programs of the 1950s and 1960s,” she notes. “Condemnations stimulated by those programs uprooted thousands of people, destroyed numerous communities, and inflicted enormous economic costs, with few offsetting benefits.” She points as well to the Poletown takings in the 1980s, when 4,200 people in a Detroit neighborhood were displaced for a GM plant that failed to provide the promised number of jobs.
Or, read a report from the Institute of Justice compiling hundreds of misguided eminent domain cases <http://www.castlecoalition.org/report/report.shtml>.
The Institute of Justice represented the homeowners in Kelo v. New London. The institute is a right-wing outfit devoted to a broad agenda of defending “property rights.”
The liberal bloc on the Supreme Court is rightfully resistant to this broad agenda, which aims to handcuff government action.
But eminent domain in economic development cases is a tool that, as an empirical matter, facilitates benefits only for the rich and powerful.
It is a tool that should be checked.
The homeowners in the case argued for an aggressive ruling, recommending that economic development should never be permitted as a rationale for eminent domain actions.
But there are less-far reaching alternatives that would also curtail abusive eminent domain actions.
As a second option, the homeowners suggested that economic development takings should only be permitted if “the government can show a reasonable certainty that the project will proceed and yield the public benefits that are used to justify the condemnation.”
This eminently reasonable approach would put a check on takings for vague purposes to be determined later — as is the case in the in Kelo v. New London case, and many others.
It would also require some kind of contractual certainty that land transferred to private parties would yield the promised benefits. That would halt the kind of abuse that occurred in Toledo, where 83 homes were condemned to make way for a truck staging area for a refurbished DaimlerChrysler plant. DaimlerChrysler said the plant would provide 4,900 jobs, but it ended up employing less than half as many.
Another useful approach was proposed in a law review article by Ralph Nader and Alan Hirsch. They argued that the government should have to show a compelling interest in eminent domain cases where condemned property was to be transferred to a private party and the party whose land is taken is relatively powerless politically.
Although the Supreme Court has now settled the issue as a matter of U.S.
constitutional law, there is still an opportunity for more reasonable approaches to be adopted. States, under constitutional law or legislation, may impose the reasonable restraints on use of eminent domain that the Supreme Court refused to establish.
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter, <http://www.corporatecrimereporter.com>. Robert Weissman is editor of the Washington, D.C.-based Multinational Monitor, <http://www.multinationalmonitor.org>. Mokhiber and Weissman are co-authors of On the Rampage: Corporate Predators and the Destruction of Democracy (Monroe, Maine: Common Courage Press).