Jewish World Review June 28, 2005 / 21 Sivan 5765

Paul Greenberg

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Wanted: A little perspective, please | What's the most shocking thing about the U.S. Supreme Court's decision last week that government has the power to take private property for public use — always with the proviso that just compensation be paid?

It's that anybody should find it shocking.

What, after all, is so new about the legal doctrine called Eminent Domain, which has been around at least since the Fifth Amendment?

Nor has the reason for such seizures basically changed: public use — by which is meant more than just roads, bridges and other clearly marked public property. It has come to mean economic development in general.

This mix of public with private interests in the American system is at least as old as the Republic itself.

And the legal question at issue has remained much the same since Alexander Hamilton envisioned a grand union of public and private interests to develop the country, and John Marshall handed down a series of landmark decisions that made Hamilton's dream a reality. The question, simply put, is: How much power does government have to enter into joint projects with private enterprises?

The 5-to-4 answer to that question last week, in Kelo v. City of New London, was: Plenty. Not unlimited power. Not arbitrary power, but still enough to buy land a city wants for private economic development — the kind of development that promises to benefit the public in general, and therefore is, yes, a public use.

That's why cities and states are so eager to attract industries — not just to collect taxes on them but to create jobs for their people and provide all the other benefits of a growing economy. That's shocking?

The only surprising thing about this ruling is that Sandra Day O'Connor, whose swing decisions tend to be so much impenetrable mush, should have suddenly taken a clear position on a legal issue. This time she came out swinging:

"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 . . . ."

Quick, hide the women and children! Board up the windows! They're coming for your house!

Please, a little perspective. Consider:

These property owners are still entitled to just compensation, which may turn out to be more than fair market value if — like some of the folks who gentrified this old neighborhood in New London, Conn. — you've got not just a lot of money but a lot of emotion tied up in your dream home.

Also, the local government that decided to take this property (and pay for it) is still accountable to voters who can throw the rascals out.

And finally, to quote the justice who wrote the majority decision in this case, Anthony Kennedy, there are still various state laws in place that can prevent such seizures, depending on the circumstances in each case. And circumstances still alter cases.

Federal law needs to remain flexible enough to respect local decisions, rather than setting down some line in the sand that state and local governments dare not cross.

As for Justice O'Connor's fear that people with money and friends will have the greatest influence on the political process, that's scarcely a shocking new development; it comes with the territory called representative democracy.

But so does the best defense against undue influence: a vigilant public rather than an over-excitable court. The cure for the abuse of democracy remains more democracy, not a narrow reading of the Constitution.

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Let it be said for those justices who joined Sandra Day O'Connor in dissent that they didn't pretend their position was justified by previous precedents. Clarence Thomas, who's a kind of Antonin Scalia's Antonin Scalia, simply came out in favor of revoking half a century of court rulings defining what's public use. He gets high marks, as usual, for candor and logic. You can tell where he's coming from — and where he would take us.

Unfortunately, it's not an attractive destination for those of us who think economic development in general — not just roads and bridges — is a worthy public use of land.

No, we wouldn't favor seizing private property just for the sake of seizing it. But without the power of eminent domain, there might be no Nissan plant covering 1,400 acres at Canton, Miss., producing thousands of jobs in a once-depressed part of that state. Or the new NASCAR raceway that's reviving Kansas City, Kan., or . . . well, let's just say I wish Arkansas's Delta were doing as well.

The big problem with the strict constructionist/original intent/literal-minded version of constitutional law is that it lacks the genius of the Constitution itself: language that is so flexible it opens a whole future of possibilities while remaining rooted in past rights and practices.

Just where to draw the line between those competing values requires that most indefinable of qualities: good judgment. And in this case, a slim majority of the court would seem to have exercised it. There should be nothing shocking about that.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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