Tuesday, November 08, 2005

A defender of Kelo has arisen

I've actually found someone who is defending the Kelo eminent domain case.
Mark Alan Hughes is his name. He's one of those urban planning experts who sometimes makes a helluva lot of sense.
This time, though, he's so far off base that he can be easily picked off.
Let's take a look at his arguments...
The image of government evicting a family from its home was dramatized in the recent Kelo decision in which the U.S. Supreme Court upheld the power of New London, Conn., to acquire nine houses at fair market value without the consent of the owners in order to pursue an economic development project that everyone agrees will generate increased jobs and taxes.
Since the decision, at least 35 states have proposed legislation limiting or abolishing eminent domain. Pennsylvania's is rumored to be on a fast track, and the U.S. House has passed the Private Property Rights Protection Act. The vote was 376-38, and I'd like to meet the 38 members who could vote against a bill with a name like that.
Frankly, I'd rather defend gay marriage at Vacation Bible School than defend eminent domain under these circumstances. But here goes.
The Kelo decision did not expand the jurisprudence of eminent domain beyond the settled practice of the past 50 years. The court has not spawned some new demon that will devour our homes unless elected officials come riding to our rescue.
Even conservative proponents of judicial restraint and so-called "originalism" (the conservative constitutional theory that the framers' intent should govern us unless we explicitly amend it) acknowledge as much.
For example, Jonathan Adler wrote in National Review: "While the Fifth Amendment clearly requires compensation for takings of any sort, there is little evidence the Founders sought to limit the purposes for which eminent domain could be used."
Exactly. There's nothing more useful than an honest conservative. What is truly being attacked here is not eminent domain but our faith that government is capable of defining a public use.
Eminent domain is our rightful power to declare that public use will trump private use. And because Americans are the world's most fair-minded and generous people, we have written into our very Constitution the protection that the exercise of that rightful power demands the just compensation of the private owners.

And because Americans guard their liberties more dearly than anyone else in the world, we further protect private owners in our state constitutions and laws (Pennsylvania certainly does this) by requiring public participation, a well-defined planning process to determine public use, an appeals process after decisions have been made and that eminent domain be used only as a last resort.
O.K., Mr. Hughes.
What's fair about New London charging rent to the homeowners who are losing their land, which it has done, by cutting the "fair-market" payment?
What's fair about taking property from one private holder to transfer it to another, almost always wealthier, private holder?
Eminent domain applies only to holdouts who insist their private use should trump the public. For an example, think of the 26 homeowners in Bucks County who delayed construction of an interchange between I-95 and the turnpike for 50 years. The nine owners in Kelo were similar holdouts who sued after dozens of other owners had sold their properties to New London.
No rights are absolute. You can't yell "fire" in a crowded theater, you can't sacrifice infants in free exercise of your religion, and you can't prevent the community from benefiting from a public use for which they are willing to pay you in full.
This is a specious argument and an invalid comparison.
The Bucks County case is a valid "public use" case for eminent domain. Taking property for a Turnpike interchange is a legitimate and valid eminent domain exercise. Taking property to build a school is a valid exercise of the power of eminent domain. Taking property for a much-needed highway or treatment plant is a valid use of eminent domain... as long as the property owners are fairly compensated (which in itself is a whole other issue, because it's not very likely that people will be able to [a] find a comparable property and [b] not have to go into debt to acquire it).
Taking property so Donald Trump can build a parking lot is an obscenity. Taking property so a city can build a golf course under the excuse of community revitalization is even more so -- and we just had a long and very costly battle in Coatesville, Pa., over that very topic. Even a Michigan court has said that the eminent domain that virtually wiped out Detroit's Poletown neighborhood for GM was a mistake.
The use of eminent domain must be well regulated and always demands just compensation. But an assault on eminent domain itself is an assault on our ability to govern ourselves. If we can't define a public purpose, then all government action is illegitimate.
It's just another attack on the idea that government can improve the lives of ordinary people and their communities.

That is another incredible leap of illogic. A public purpose is already well-defined. It is one that serves the public... not private investors. (I could, in some more intense moments, argue that most government action is illegitimate, anyway, but won't in this forum.) I could go so far as to defend eminent domain as a means of acquiring abandoned properties that have become hazards to the community.
The bottom line is this -- the government gets its responsibilities from the people; the government does not grant the people their rights. Those are inherent, according to far wiser folks than I. The government has a responsibility to act responsibly, defending the rights of the "little guy."
Using eminent domain for private investment is hardly defending the "little guy," don't you think?
Flame Mark Alan Hughes at mahughes@sas.upenn.edu.