Eminent domain: Clarence Thomas was right
Suzette Kelo's home was moved because of court ruling. Photo: Christopher Capoziello for NY Times
I don’t know if the five U.S. Supreme Court justices who allowed the city of New London to seize the land where Suzette Kelo lived in a two-story, pink, wood-frame house and turn it over to Pfizer, Inc. for an economic development project are red-faced with embarrassment today, but they should be. As The New York Times reported on its front page today, Pfizer is leaving town, along with 1,400 jobs.
The majority in the court’s 5-4 ruling in 2005 in Kelo v. New London – justices Stevens, Breyer, Ginsburg, Kennedy and Souter – ruled that it was an acceptable “public use” (under the Fifth Amendment) for government to seize one citizen’s property and give it to another if it served an economic development purpose that would benefit the broader public. The justices rejected the argument that such a use of eminent domain blurs the boundaries between public and private. “Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties,” Justice Stevens wrote.
The justices also rejected the argument that officials should require a “reasonable certainty” that the promised benefits would actually come through. Anyone who has followed local economic development projects knows that the claims made to justify taxpayer subsidies often turn out to be inflated. But Stevens wrote: “A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.”
That is to say: you have no protection if your local officials suddenly decide your front yard is a good place for a shopping mall. I don’t think Justices O’Connor or Thomas exaggerated when, in their dissents, they said the court had effectively removed the “public use” protection from the Fifth Amendment.
For reasons I don’t understand, opposition to this excessive use of government authority has come more from the right than the left, whether on the Supreme Court or in terms of grassroots organizing. (Conservative Christian groups pushed a campaign against the Kelo ruling that contributed to the making of many state laws trimming the use of eminent domain.)
In New York, where I live, opponents of the use of eminent domain have largely been liberals, dating back to the days of Robert Moses. These battles continue; Mayor Bloomberg is a big supporter of unhindered governmental use of eminent domain, and had the city file a brief supporting New London in the Kelo case.
on November 13th, 2009 at 11:54 am
“For reasons I don’t understand, opposition to this excessive use of government authority has come more from the right than the left, whether on the Supreme Court or in terms of grassroots organizing”
Because since the late 19th century, “conservative” political philosophy essentially means limited government and “liberal” or “leftist” political philosophy means an expanded level of government intervention in many parts of life – dating from the Progressive movement.
This is pretty basic.
on November 13th, 2009 at 12:01 pm
True. But conservatives don’t necessarily support the spoils going to the richest capitalist with the deepest pocket book. At the bottom of it all is the defence of private property.
We had a similar issue in our town. A nice (and cheap) little restaurant by the river was condemned in order to sell the land to developers. The little restaurant had been there since the late ’30’s, owned by the same family. Public outrage knocked out the mayor, but the new mayor simply lowered the boom anyway. Then the real estate market collapsed, so now all there is is a big watery hole next to the bridge. If anyone is interested, I could probaby hook you up with the city for a good price.
on November 13th, 2009 at 12:33 pm
It’s not that surprising. When it comes to a clash between government power and private property, liberals usually side with the government. And could you elaborate on the Robert Moses quip? I thought Moses was the quintessential example of post-war liberal urban planning.
on November 13th, 2009 at 1:09 pm
-Doesn’t Pfizer have other troubles?
-I commend to Stu Robert Caro’s magisterial “The Power Broker.” Still great reading!
Note the clash between the liberal Nelson Rockefeller and Moses -over power, of course.
(A quick memory from long ago childhood: Robert Moses strolling through Karl Schurz park on warm summer nights, talking to people about Speaking of snapping up property, what is to be said about the history of the Cross Bronx Expressway and its subsequent impact???
on November 13th, 2009 at 1:28 pm
And could you elaborate on the Robert Moses quip? I thought Moses was the quintessential example of post-war liberal urban planning.
Studebaker,
If I said, “Anti-war protesters have carried picket signs and chained themselves to fences going back to the days of Lyndon Johnson,” would that mean that Lyndon Johnson was an anti-war protester?
on November 13th, 2009 at 2:39 pm
“In New York, where I live, opponents of the use of eminent domain have largely been liberals, dating back to the days of Robert Moses. These battles continue; Mayor Bloomberg is a big supporter of unhindered governmental use of eminent domain, and had the city file a brief supporting New London in the Kelo case.”
The opposition is not to the use of the police power of the state to seize private property; the opposition is based on who the object of the police action is against.
on November 13th, 2009 at 2:54 pm
Kelo merely reaffirmed the law of public use spelled out by the Court over the prior 100 or so years, including Justice O’Connor’s own opinion in the Midkiff case. Kelo didn’t do away with the public use requirement. The objection here is not to nature of the use but to the wisdom of the underlying project. Not everything that is stupid is unconstitutional.
on November 13th, 2009 at 3:13 pm
David — well, I think it’s more like saying, “Democrats have opposed war back to the days of Lyndon Johnson,” as if to imply that Johnson himself had been a Republican.
on November 13th, 2009 at 3:19 pm
Nor is it correct, I think, to imply that the only opponents of Robert Moses were themselves liberals. It’s hard to reconstruct the history of that time sitting at my computer (I’m not going to the library to read several books just for a blog comment), but I do know that William Buckley was a fan of Jane Jacobs’ “Death and Life” — which strongly attacked Moses — when it came out, and National Review tried to solicit articles from her.
on November 13th, 2009 at 4:25 pm
I wasn’t aware that William F. Buckley was an opponent of Robert Moses. I associate opposition to Robert Moses with liberals such as Jane Jacobs and others in Greenwich Village, and also with the New York Post, at the time the most liberal of New York’s daily papers. A number of left-wing Manhattan politicians continued to battle against big development projects during the Koch and Giuliani admininistrations, as did the Village Voice, mostly to little avail. I don’t know of any meaningful opposition by conservative politicians.
Rudy Giuliani opposed the Kelo decision when he was running for president, but made full use of the power of eminent domain while mayor. The most objectionable of these deals allowed an office building in Times Square to be torn down so that another office building could be put in its place – the heavily subsidized home of the New York Times Co. It was Giuliani’s last big economic development deal as mayor.
on November 13th, 2009 at 4:42 pm
The Jane Jacobs vs Robert Moses story is the subject of a recent well received book:
http://www.amazon.com/reader/1400066743?_encoding=UTF8&ref_=sib%5Fdp%5Fptu
Enter “La Mountain” in the search box to learn about the priest and the small parish that were at the center of the battle against the Lower Manhattan Expressway favored by Moses.
The page 172 entry mentions a tree planted by Jane Jacobs in front of the church. Here it is, still the only tree on the block:
http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=CW2bnugdd8D8FV5WbQId3OqW-ykNteSIiFnCiTH-VZsLy6Zzjg&q=378+Broome+St,+NY,+NY&sll=40.719746,-73.995624&sspn=0.010652,0.018046&gl=us&ie=UTF8&hq=&hnear=378+Broome+St,+New+York,+10012&ll=40.720364,-73.996289&spn=0.011059,0.018046&t=h&z=16&layer=c&cbll=40.720336,-73.996414&panoid=JrZaNyflododo8xX3qjS0A&cbp=12,21.61,,0,5
Parishioners from Our Lady of Vilnius, the Lithuanian parish whose closure a while back occasioned some comments here, were also involved.
To be fair to Moses, people like Nathan Glazer look upon him more favorably than most of his early critics. And even Robert Caro, in contrast to Jacobs, objects primarily to the methods of Moses more than the substance of his vision.
on November 13th, 2009 at 4:44 pm
And I should add that since there are no more than 100 conservatives in Manhattan it’s not surprising that they are not among the leadership in political battles.
on November 13th, 2009 at 5:16 pm
Something can be constitutional and bad policy. The City of New London, arguably, made a bad choice politically to attract a large employer, but it’s the same mistake made by a lot of other local jurisdictions. (By the by, I usually oppose this kind of stuff as a matter of policy — it’s almost always a bad deal for the public.)
I read that 43 states changed their laws to make it clear that local authorities could not exercise eminent domain under the circumstances present in Kelo. This is the right result — the constitution is an important backstop but it’s hard to use it form making nuanced gradations about what is enough public involvement in the determination of a political subdivision to constitute a “public benefit” under the constitution. It would be one thing if the city had exercised the right and simply turned the title over to a private owner to do with whatsoever it wanted, but that’s not what happened here: the city had an elaborate plan of development and solicited offers from private parties to develop, and ultimately, ownership was part of that plan. It didn’t work out — but that’s not really a function of whether they owned the land to begin with or acquired it.
In other words, if the power was unconstitutional, it really does not matter how successful the development became, and vice versa.
on November 13th, 2009 at 5:30 pm
Follow the money, honey. It usually boils down to who’s scratching whose butt with what kind of lucre. Them that pays, plays — even with other people’s property.
on November 14th, 2009 at 1:10 pm
It seems to me that these issues of eminent domain are such a nettlesome ones because the concept of eminent doman is a specification of the notion of the common good, Private property can be seized for the common good — but what are the criteria for such seisure? Are there any analogous ones to the criteria found in just war theory (another specification of the notion of the common good)?
Maybe comparing an exercise of eminent domain with a just war could teach us something about seizures of property for the common good. The most obvious difference is that wars are essentially destructive of property while eminent domain claims ultimately to use property better.
Maybe Aristotle’s theory of the proper ownership of a fine flute is relevant here: a flute ought to be owned by someone who can play it best, not by the one who can pay the most for it. The reason: it is the purpose of a flute to make beautiful music. And I think we could agree that Yo Yo Ma is a better owner of a great Stradivarius cello than the untalented kid of a billionaire who has the money to buy it. So what is the purpose of any given piece of property? Hmm. To some extent that is determined by its context, by property near it.
But even more fundamentally, how can we order some to suffer when others do not? Some will say we must offer fair compensation for the loss. (Does Rawls get into this problem?) But is there adequate compensation for every loss? Those who do not believe in Heaven, or even God, surely would say No, and I can see why they would claim that the common good theory is unjustified.
Complexity, complexity.
on November 15th, 2009 at 7:59 am
I can’t tell: is that the house before or after it was moved? It’s a really cute house.