The fallout from yesterday’s Supreme Court decision on eminent domain continues (Kelo v. City of New London). Today the NY Times editorial page weighs in, describing the Court’s action as "a welcome vindication of cities’ ability to act in the public interest."
In light of the scathing and surprisingly universal condemnation of the case from the left and the right, the Times is remarkably sunny about it – actually, the Times’s commentary is the most positive I’ve seen other than the lawyer who argued the case for the city. The Times gives what the city was doing every possible benefit of the doubt, and dismisses the dissenters’ worries of transferring property from less influential folks to more influential folks as "exaggerated."
Gosh, what do you think might account for the Times’s attitude here? Doesn’t the "liberal" NY Times usually stand up for the little guy in the face of aggressive governmental action? Here’s a clue: the Times notes in its editorial that it "benefited from eminent domain in clearing the land" for its new building near the Port Authority terminal. What actually happened was a lot worse than that.
The short version is this (the Village Voice has the long version here): a couple of years back, the NY Times decided it wanted to build a big shiny new headquarters. And it wanted to built it on Eighth Avenue near the Port Authority terminal in Manhattan. Unfortunately, other people owned some of the land – Scot Cohen, for example, who owned B&J Fabrics, a family business that had been there for almost 50 years. To get the land owned by Cohen and others, the Times resorted to what is now apparently the Supreme Court approved American way: it used its political influence, and that of its developer, to work a deal with the city and state whereby New York’s economic development agency would take the land and reconvey it to the developer on extremely favorable financial terms. Sound familiar? The Times got slammed by the left, the libertarians, and the right for its conduct.
Here’s the hilarious part: at the time, a communications professor noted that the Times’s involvement might "undermine the Times‘ ability to criticize similar arrangements between government and business." The Times, of course, insisted that its journalistic and editorial operations were pristine and could not possibly be influenced by what its business folks were up to: "This real estate transaction does not compromise the independence or credibility of the Times editorial voice or the integrity of the Times reporting in any way. Our business and news functions operate separately." Oopsie.
This issue is not about "liberal" or "conservative" politics. It’s about big corporations with a lot of money and influence – like Pfizer in New London or the NY Times in Manhattan – deciding they want property held by people or businesses with less money and influence. Does it serve the cause of "economic development"? Sure, because the big guys will always build bigger buildings, or bigger houses, and that will always result in bigger tax payments. So the city gets more money in its coffers, the big guys get the land they want, and everybody wins – except anyone who thought that there might, somewhere, be a limit to how badly the government can treat its citizens.
IMHO, this is a hugely important decision, maybe the most important since Bush v. Gore. The Ten Commandments cases set to come down on Monday may get more attention, but really, who cares whether some stupid city council wants to post the Ten Commandments in a courthouse or not. It pisses people off (including me), but it doesn’t really hurt anyone. This eminent domain business, in contrast, is about EVERYONE. Your home, or mine, could be next. So with Bush v. Gore, the Court is 0 for 2 in recent cases that truly affect the lives of everyone in the Unites States. Not too impressive.
UPDATE: The Washington Post also editorializes in favor of the Kelo decision, although in much more muted tones that the NY Times. The Post’s position is that, yeah, this sucks, but there’s no way to draw a line, so the Court had no choice. To which I say: what a cop-out. Anyone can decide the easy cases. We pay judges nice salaries, build them nice buildings, and give them large amounts of power so that they can decide the hard cases, bringing their years of learning and accumulated wisdom to bear on the difficult questions that come before them. So don’t give me this "oh, we can’t figure out how to draw the line, so let’s just let the government do anything it wants" crap. The line Justice O’Connor proposes in her dissent (OK to take "blighted" property, but not OK to take property just for "economic development") seems like a reasonable start, and I’m sure there are other possibilities. If the "public use" portion of the Fifth Amendment is to have any meaning (and most people agree that it should), courts will have to draw the line, difficult task though that may be. If they shirk from that responsibility, they are simply not doing their job.
Atrios had an interesting take on the decision. He thinks it a mixed blessing, both bad and good.
The question in the case was whether an area that everyone agreed was NOT “blighted” was a candidate for a taking that tranfers private property from one owner to another. I don’t see much good in the affirmative answer to that question. No one is disputing that the government should be able to condemn the local crack house.
Sad, but great post.