Utilitarian rhetoric masks Kelo ruling’s illiberalism

Aside from The New York Times’ sore-winner editorial of June 24 — which valorized the Supreme Court’s ruling in Kelo v. New London while neglecting to mention that the Times Co. acquired its current property through a fairly egregious use of eminent domain — full-throated defenses of the Kelo decision have been scarce.

Against a backdrop of near-universal hostility to the ruling among liberals, conservatives and libertarians alike, Tom Lehman donned contrarian armor to argue in these very pages (“In practice, eminent domain ruling should not pose problems,” 10/7) that a Supreme Court ruling authorizing municipalities to seize the property of homeowners and turn it over to private developers — to confiscate, say, Tom Lehman’s house to make room for a Starbucks — is no cause for concern. To paraphrase the philosopher George Bealer, Lehman deserves credit for filling a much-needed gap in the commentary on Kelo.

Lehman concedes that the legal merits of Kelo v. New London “may be up for debate.” That’s putting it mildly. In an appropriately indignant dissent, Clarence Thomas wrote: “If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution … [which] is a meaningful limit on the government’s eminent domain power.”

The Supreme Court could use more curmudgeons like Thomas who insist that words in fact mean what they say. Instead, a majority of justices in Kelo signed off on any taking of property that could be ascribed some sort of “public purpose,” establishing a precedent of enabling the exercise of coercive government power against individuals just as long as the authority in question provides some fig leaf of a utilitarian rationale.

There is a reason why we, as a society, do not entertain, much less enact, any number of proposals — e.g., collectivization of property, universal indefinite military conscription, forced communal organ harvesting — which some utilitarian calculus could justify, and which indeed would serve a more obvious public purpose than, say, allowing a private development firm in New London to force lifelong residents out of their homes. The concept of individual autonomy enshrined in our Constitution thankfully restricts what state entities may do to citizens in the name of the public as a whole, and it is that very concept that Kelo v. New London jeopardizes.

Lehman’s Panglossian defense of the Supreme Court’s ruling, which fails to take any notice of its precedential implications, consists of approximately two points. They can be summarized briefly, and they deserve specific rebuttals, as they embody precisely the sort of facile cleverness at the expense of commonsense jurisprudence in which the Kelo decision revels.

First, Lehman argues, the public-private use distinction is meaningless, since it “does nothing to ensure that a taking be justifiable.” This logic is exactly backwards: Lehman is right, of course, that restricting the government’s takings power to public uses is not a guarantee that a specific taking will be justified; however, the fact that there can be illegitimate public-use takings tells us nothing whatsoever about the justice of a private-use taking. On the contrary, I defy Lehman and any other Kelo apologist to adduce a single example, actual or possible, of a private-use taking that is justified both constitutionally and morally. Regardless of the justificatory status of public-use takings, denying the government the right to exercise eminent domain for private uses constitutes an important bedrock in the defense of individual rights.

The second component of Lehman’s defense of Kelo is an economic utilitarianism echoing that of the Supreme Court’s majority opinion. To wit, Lehman contends that without eminent domain, the last homeowner to sell land needed for, e.g., a highway, could force the government to pay some exorbitant sum for his property, knowing that the government’s sunk costs will by then force it to pay whatever price he demands.

But it is instructive that Lehman chooses to illustrate this justification of eminent domain with a public-works project. If what were at stake were a private commercial development rather than a public good, all things being equal Lehman’s defense of eminent domain would be rendered utterly hollow. Suppose the last remaining homeowner on a block decides to hold out against a condominium developer; to do so is his absolute right as a citizen, and it would be a travesty for the government to compel him to sell.

What is ultimately at stake in Lehman’s apologetics for the Kelo ruling is the notion that the protection of individual rights against legislative- and executive-branch abuses is the responsibility of the judiciary in the first place. Contenting himself with the observation that a number of states have enacted legislation curbing eminent-domain powers, Lehman adopts the deeply illiberal position that the judiciary has no such responsibility.

The real-world consequences of the Kelo ruling are already manifest. To offer a sampler of the nausea-inducing government malfeasance made possible by Kelo: The city of Arnold, Mo., is attempting to raze 30 homes and 15 small businesses to make way for a Lowe’s store and a strip mall; Mayor Gary Paparozzi of Lodi, N.J., relishing “the best-case scenario for using eminent domain,” seeks to evict 200 trailer-park residents from their homes to enable retail development.

The grossest of the post-Kelo indignities, however, belongs once again to the city of New London, Conn., which, having won its case before the Supreme Court, now seeks to charge back-rent to the evictees who it alleges have been living on city property since the city first sought to exercise eminent domain five years ago. According to the Fairfield County Weekly, the New London homeowners, whose “debts” could total hundreds of thousands of dollars, are nevertheless “being offered buyouts based on the market rate as it was in 2000.” I’m sure that Susette Kelo and her co-plaintiffs would be comforted by Tom Lehman’s good news that the Supreme Court’s ruling “should not pose problems.”



Daniel Koffler is a senior in Calhoun College. His column appears on alternate Wednesdays.

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