Conservatives called it the most important case in the Supreme Court this year. It was the latest skirmish in a war that pitted liberals against conservatives who desperately fought to limit government control over private property. And this case, Kelo v City of New London Connecticut, would decide whether local governments could seize private property and give it to another private party under an expanded view of eminent domain. And when the 5 to 4 decision was announced on Thursday it was a victory for the Supreme Court’s liberal wing.
And the conservatives Justices were livid. But conservatives weren’t the only ones who were unhappy. Ralph Nader also condemned the decision and complained that in the last few decades local municipalities have been abusing eminent domain powers across the country, taking property from ordinary citizens and giving it to powerful corporations and developers, and that with this decision “the Court has abdicated its role as guardian of the Constitution and individual rights.”On the surface, the Kelo case presented a fact situation that has become quite common in recent years. An older city with high unemployment, dwindling population and a dwindling tax base tries to dig itself out the economic morass by seizing people’s homes, clearing the land and turning it over to private interests that would build a residential, office, retail complex supporting new $300 million research facility of the Pfizer drug company. The city would benefit by increasing it’s tax base and probably creating a few jobs along the way. Home owners, on the other hand, didn’t want to sell their property and didn’t want to move. One of the Kelo plaintiffs was an 87 year old woman who was born and raised the house.
The underlying legal issue, however, is of Constitutional proportions and has tsunami-like ramifications for other areas of the law. And the Supreme Court’s conservative wing, Rehnquist, Scalia and Thomas have fought doggedly to limit government control over private property.
At issue was the Fifth Amendment of the US Constitution that allows government to take private property only for “public use.” Historically this has meant that it is ok to take private property to build roads, bridges, parks, public buildings ñ things used or owned by the general public. But in the last few decades a broader interpretation of phrase “public use” has evolved. And a number of states have enacted legislation that allows local governments to seize private property and turn it over to other private interests if those projects are deemed to have a “public purpose.”The first of these cases, decided some 25 years ago was probably the most dramatic. Commonly known as the “Poletown” case, it was cited by both dissenting Justices O’Connor and Thomas as an example of what the future might now hold for other property owners. In Poletown the City of Detroit, bulldozed 465 acres in the center of the city, forcibly relocated 3,500 people, destroyed 1500 homes, 16 churches, 144 businesses, 2 schools and a hospital to build a General Motors assembly plant. The “public purpose” was to “alleviate unemployment” and the Michigan Supreme Court said that it was constitutionally acceptable use of eminent domain.
Since then virtually every state has enacted similar laws and there is virtually no limit on what might constitute a “public purpose.”
After the Kelo decision the individual states will still have the power to change or interpret their own constitutions to restrict the power of eminent domain. And ironically, in Michigan where that state’s Supreme Court approved the 1982 demolition of Poletown, the Court has already done so. It reversed itself after almost 25 years of unbridled seizures of private property for a variety of development projects and found the “public purpose” law unconstitutional. It is worth noting that the effort to do so was led by the most conservative members of the Michigan Court, the same conservative justices who were elected with the financial assistance of insurance companies, manufacturers associations and the chamber of commerce types. These are the same conservative justices who regularly limit the rights of criminal defendants, restrict the rights of tort victims and destroy the state’s consumer protection laws.
That’s one of the things that makes the Kelo case so unusual, it has reversed the role of many of the players and created such strange bedfellows.
For one thing, it is usually the conservative wing of the Supreme Court that habitually advocates “judicial restraint” and “deference to local government.” But in the Kelo case, it was ñ the liberals that argued against judicial activism and who refused to “second guess” the local government’s decision to bulldoze a neighborhood.
On the other hand, it is the liberals who usually defend the rights of the poor and down trodden. But in Kelo, it is the more conservative dissenters who are making that argument. Justice O’Connor pointed out, correctly, that the primary beneficiaries of these seizures of private property are those “with disproportionate influence and power in the political process, including large corporations and development firms.
But it was downright hypocrisy for these conservative Justices, particularly Thomas, who, on a regular basis, has slashed and burned his way through the Constitutional rights of powerless people, to pretend to be a defender of the poor and talk about the “working-class” and the “immigrant community” and the “lower income and elderly.” It’s clear that Thomas along with Scalia and Rehnquist are angry for ideological reasons. Private property means wealth and privilege and the notion that local communities should have the power to seize that property in the name of “alleviating unemployment” or “enhancing their tax base” sounds a little too much like socialism, a little too much like nationalization of resources or industries.
Who knows, some communities might want to start seizing factory farms to stop pollution of streams, or seize newspapers that threaten to go out of business unless they get approval for a joint operating agreement. The conservatives do not like the notion of local governments with broad constitutional powers that might at some point threaten the interests of the wealthy elite that run this country under the guise of democratic rule.
And what of Ralph Nader who fought developers and big corporations on behalf of the people of Poletown and New London and other communities and who has been an outspoken defender of the working class and the poor? How does he end up being on the same side as the conservative wing of the Court?
For one thing, the majority Justices in Kelo, Stevens, Breyer, Ginsbugr, Kennedy and Souter, who upheld the broad interpretation of eminent domain, are clearly delusional if they think local officials are going to protect the interests of their homeowner-constituency against big corporations and developers. Justice Stevens talks about how the New London plan was “carefully formulated” and how the local legislatures and courts were best at “discerning local public needs.” Nonsense. Many of these local politicians have the values of used car salesmen and the not-so-subtle exchange of votes for campaign contributions is commonplace. And the courts, with judicial races financed by big business, are no better.
The difficulty with this case and with this issue is that it does not address the fact that there is simply too much money to be made by politically connected developers and too many corrupt, self-serving local politicians and legislators willing to do their bidding.
And the media, our watch dog on government, is as profit-driven as the developers and is certainly more closely aligned in interest with the banks and chamber of commerce types than with the working class. If anything, the corporate media can be depended upon to cast the issue in a way that makes voting against some development project akin to burning the flag. How could anyone be “opposed to progress” or opposed to a development that will “produce jobs” or “clear slums” or “increase the tax base?”
After Kelo the individual states will still have the power to change or interpret their own constitutions to restrict the power of eminent domain. And in the coming years this fight will shift to the state legislatures and the Courts. In Michigan, where that state’s Supreme Court first approved expanded eminent domain legislation then reversed itself 25 years later, the pressure is already on to approve new, constitutionally acceptable, legislation lest cities like Detroit be disadvantaged in their competition with cities in states that can take private property for development. The race to the bottom begins anew.
GEORGE CORSETTI is a Detroit attorney and filmmaker who, along with Jeanie Wylie and Richard Wieske, made a documentary film, “Poletown Lives!,” about the destruction of Poletown. He can be reached at:firstname.lastname@example.org