[corp-focus] Condemning Injustice

[Robert Weissman]

Condemning Injustice
By Russell Mokhiber and Robert Weissman

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).

(c) Russell Mokhiber and Robert Weissman

This article is posted at:
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