Friday, June 24, 2005A lot of smart people are being taken in by some very shoddy reporting. The Mainstream Media and pundits & bloggers left and right are howling over the Supreme Court's decision in Kelo vs. City of New London. The spin on this court ruling has really been something. You'd think that Wal-Mart would be knocking on your door in the middle of the night telling you to pack your bags.
But a careful examination of the case should reveal that, all in all, this is a good decision by the court. We liberals should support it. The fact that the left wing of the Court was in the majority and the right wing in the minority should tell us something about where we should stand.
First of all, we can't get bogged down in the specifics of this case. You can't set broad legal principle based on narrow circumstances. That's where the phrase "bad facts make bad law" comes from. An effort to justice in this instance may establish a precedent that does injustice in many other situations.
So let' s look at the legal principles that are being upheld in this case: that state and local governments have the right to regulate and claim private property for public purposes, and that public purposes includes economic development.
That's it. Revolutionary, isn't it? This is in fact a very basic principle of government - that communities have claims on private property owners. You don't have to like how New London exercised their powers, but that doesn't mean you need to strip them of it. To paraphrase Alexander Hamilton, the abuse of a thing does not amount to a criticism of the thing itself. We don't ban hammers because someone gets murdered with one.
The minority tell a very different story. O'Connor, Thomas, Scalia, & Rehnquist argue that a) private property rights are rendered vulnerable to seizure, b) that this is an illegitimate expansion of the "public use" provision, and c) that corporations will manipulate the process to drive smallholders off their property. Let me respond to these in turn:
a) Private property rights are not absolute. Governments regulate property all the time. It's what we do whenever we zone an area, or pass an environmental law, or regulate a corporation. No big deal.
b) The minority is making a distinction without a difference. If "public use" doesn't mean economic development, then how did NYC get rid of smut in Times Square? They did it to revive the local economy, which everyone thought was great. Unless the right wingers are suggesting that the inviolability of private property only applies to residential property and not corporations. This would vitiate the conservative argument that we should treat corporations as "persons" and and that any regulation of them amounts to a "takings." I can't believe that this is really their position.
c) Big companies will not be driving people off their land unilaterally. They will have to persuade local elected officials, who are ultimately accountable the voters. If the electorate doesn't like a land use plan, they can throw the bastards out. Now we could argue that the wealthy and powerful have too much influence over government, but this is nothing conservatives have every cared about before. We should all be suspicious that they are making such a to-do about it now.
To clarify the issue, let's see what would be the outcome if the decision had been the reversed. Right away we'd have to get rid of all zoning regulations and environmental laws. You see, those are public claims on private property, which according to O'Connor are inviolable. This means that corporations will be able to do anything with property which is defined as theirs. That's right - anything. If we accepted the logic of O'Connor et al, we would go to bed thinking we had defended my right to keep my home and wake up breathing smog from the nearest factory, eating poisoned fish, and realizing that my wages had been cut to $1.50/hour because the minimum wage is a "violation of the right of contract."
The wingers on the court aren't fighting to protect smallholders. They are simply continuing a campaign to deprive governments of any legal right to regulate big companies. These nuts are trying to overturn the Great Society, the New Deal, and the Progressive Movement so that their corporate benefactors can do anything they like without consequences.
Don't be fooled.