July 06, 2005

More on the Kelo decision

Today's New York Times has this by John Tierney, who notes that Pittsburgh has a long history of poorly planned eminent domain takings. In response to the Supreme Court's deference in Kelo to the wisdom of local governments' "carefully considered" economic development plans when those plans lead to takings, Tierney's point is that Pittsburgh's leaders planned pretty carefully-- and screwed things up completely. He clearly thinks that Pittsburgh would be a better place today if the city's grand plans for urban renewal had never been enacted.

To which the appropriate response is, so what? The experience of Pruitt Igoe and many other public housing disasters tells us that city designers have had some remarkably bad ideas about how to revitalize downtrodden city centers. But economic development remains a goal that state and local lawmakers should pursue--even in the wake of earlier failures. And the Court has to trust that locals can do it right-- or at least better than nine old lawyers in robes ever could.

The Big Question for anyone thinking about the Kelo decision is whether economic development is a permissible goal of local government takings. And the majority's logic in their answer to this question (which was basically "yes") seems just right: we know that it's OK to take property for basically public goals, such as a highway. We also know that it's not OK to simply give one person's property to another person just for the hell of it. In between these two extremes is a big gray area, in which eminent domain takings result in a transfer from one private individual to another, but a broader public purpose is (possibly) served by the taking. And the way the Court has traditionally dealt with these "gray area" takings is by giving a great deal of deference to the local governments doing the taking, checking only to make sure that the taking is not a blatant land grab, but actually achieves some public purpose.

So the only question the Court really had to answer in the Kelo case is whether a public purpose was actually achieved by the city's plan. And it's pretty easy to see that it was.

A few months ago the Court ruled that executing juveniles was unconstitutional. I was absolutely appalled by the logic of the decision, but was totally jazzed about the practical implications (states will stop executing kids). The Kelo case is exactly the opposite for me: I'm absolutely worried about the potential for crooked politicians and developers making back-room land grab deals, but I can't fault the Court's logic in their decision. And if you look at the folks who are maddest about Kelo, they're not criticizing the Court for being illogical-- they're criticizing the Court for not thinking pragmatically about the long-term implications of their decision.

As the Court pointed out, if lawmakers find this decision reprehensible they can pass laws weakening eminent domain laws. (And states like California apparently already have.) But in the meantime, it seems unreasonable to fault the Court for thinking in terms of precedents rather than navel-gazing about where the slippery slope might lead.


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