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February 21, 2005

Why are Progressives Cheering Scalia?

The Supreme Court is considering the issue of whether eminent domain can be used to buy property from one owner, using its eminent domain power, and hand it over to another private company to encourage economic development, in this case a waterfront hotel and convention center.

It may or may not be the best use of the land to benefit the local community, but why the hell should the Supreme Court decide such an eminently (excuse the pun) political question as local land use decisions? The Connecticut State Supreme Court agreed that it's a political issue and none of their business

But Bella over at Crooked Timber thinks "it's obvious the Supreme Court should reverse the state Supreme Court" and Atrios seems to agree since the area in question is "definitely not 'blighted.'"

But we don't want a legal standard that poor people can lose their homes to eminent domain (as happened without legal protest during the age of "urban renewal"), but middle class people have a key to the courthouse to overturn local planning decisions. You can bet that if the Supreme Court jumps into this game, planning decisions to create jobs for poor people will be struck down in the future. That may not be at work here-- although if you read the actual state Supreme Court case, it seems like a quite reasonable development project to create jobs in the community; along with the convention center, there are plans for a high-tech research park.

The Legal Issues: As for the legal point of assuring that it's all for "public use," the local development corporation will retain ownership of the land in question (admittedly with nominal rents) in order to be able to force the companies using the land to comply with local economic development plans, a clear public purpose.

As the Connecticut Supreme Court noted, there is a long legal history of mill owners being allowed to flood neighbors lands as serving the public good. In Connecticut, the relevant precedent is from 1866, Olmstead v. Camp, where the Court stated that promoting economic development was by definition "public use": as that court in 1866 said, "It is of incalculable importance to this state to keep pace with others in the progress of improvements, and to render to its citizens the fullest opportunity for success in an industrial competition."

And of course the CT Supreme Court pointed to the history of urban renewal as showing courts have always given deference to redevelopment decisions by government. Even more relevant to progressives, the court pointed to Hawaii, where the government sought to break up the power of oligarchic land ownership on that island dating from colonial days by transferring ownership to private owners through the eminent domain mechanism. In Hawaii Housing Authority v. Midkiff, the US Supreme Court said, "The 'public use' requirement is thus coterminous with the scope of a sovereign's police powers," meaning that power is quite expansive. Or as the US Supreme Court stated in Berman v. Parker (1954) said in the case of a redevelopment project in the District of Columbia:

"Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established."

Economic development is clearly a valid public purpose and I don't want courts playing games to decide which development is "good" and which is "bad." Since they've already decided that driving the poor out their homes is a valid purpose, I have a justified suspicion that any further judgements in this regard are more likely to benefit the privileged than protect individual rights.

Posted by Nathan at February 21, 2005 11:49 AM