Tuesday, June 28, 2005

Editorial Eviction Notice

Some days I just don't know what to make of the utter crap that gets spewed forth daily on the Pittsburgh Post-Gazette's editorial page. There's another idiotic piece of tripe by Reg Henry, who tries to be both a humorist and an opinion maker, but fails on both counts. He just comes off as sarcastic and goofy. Quite frankly, if he wants to take a vacation to Guantanamo Bay, more power to him. Maybe he could do us all a favor and stay there. And the paper could replace him with a real journalist who listens to all sides of a story, and not just whatever the big time Washington politicians are saying.

Reg almost makes the op-ed piece about the Kelo vs. New London Supreme Court decision sound well-reasoned and intelligent. Almost. While people on both the Left and the Right cry together in outrage, the Post-Gazette looks for "wisdom" in the outcome of this case:

To hear some enamored of the property rights movement tell it -- and that includes dissenting justices of the U.S. Supreme Court -- the rights of Americans were struck a grievous blow last week when the court ruled to uphold an expansive reading of "public use" in eminent domain proceedings. A home was no longer the owner's castle; the walls had been breached.
"Some enamored of the property rights movement"? You mean adherents of a free society? People who refuse to tolerate the socialistic turn that the country has taken in the last century? Damn right we're concerned about the erosion of our rights.

I can't believe that the editorialist refers to a "property rights movement". That sounds like anyone who owns or wants to own their own home. Is that a new movement? When were people not able to buy property in America?
Nobody who is serious argues that eminent domain is itself unconstitutional under the 5th Amendment. To that extent, all private property has always been vulnerable. If this case were the government taking the land to build a military base or a road or a park, there would be no argument. What was argued was how far do the words "public use" extend.
"Nobody who is serious" -- this is a nice set up. In just a few short sentences, this will come to mean "anyone who disagrees with us should not be taken seriously".
Far enough, said the court by a 5-4 majority, for the city of New London, Conn., through a private non-profit agency, the New London Development Corp., to take by eminent domain, with the required just compensation, parcels of land for economic revitalization. The land was not blighted but New London itself was distressed, with both high unemployment and a drop in population.
So where is the "public use"? If the non-profit agency is indeed a private group and not actually a part of the government, then they will have all of the rights of any private property owner to restrict the public's use and access of whatever they plan to do with their newly acquired parcels of land. This is nothing like a military base, or a road, or a park.
Justice John Paul Stevens, in the 5-4 majority opinion, wrote, "Promoting economic development is a traditional and long-accepted function of government." Indeed, it is.
Sure, but the devil -- as always -- is in the details. Here's a hypothetical: Supposing the developer who tears down the homes replaces them with upmarket shops and restaurants. Someone who used to live on that property may not be able to afford to shop and eat there. They may not be able to afford the kind of clothing that would be acceptable according to a nice restaurant's dress code. That's a slap in the face. It's not just "get out of here", it's "get out of here and never come back". But government doesn't care. Government can't care. Government's only concern is the increased tax revenue coming from the new developments. Screw the owners of private homes, say five Supreme Court Justices and the PG.
But for anyone who fears that such an understanding of "public use" puts all private property in peril, Justice Anthony M. Kennedy in his concurring opinion gives some comfort. He suggested that economic development might not always pass muster as a reason for the taking of property. A more demanding standard might apply in cases where transfers were suspicious, or the procedures used prone to abuse, or the purported benefits were trivial or implausible.
Oh yes, he's a hero alright. His warning pretty much describes any kind of taking for "economic development". More than anyone else, Kennedy was the "swing vote" in this decision. Is there some kind of hidden agenda behind his vote? It sounds like he's setting it up so that lawyers can make more money off of this deal. That's what "pass muster" comes down to here. It means getting lawyers involved to hash things out.
That caution is a good one; eminent domain has its place but its critics are right that it can be abused. At the same time, they tend to downplay the usefulness of eminent domain.
"It's bad...but it's actually very good!"
While the threatened use of eminent domain was a controversial issue in Mayor Tom Murphy's ill-fated plans for the Fifth and Forbes corridor, eminent domain was used profitably in the development of the Point during Renaissance One after World War II -- and it gave birth to a fine park and a new engine of commerce in the Gateway Center buildings. To be sure, the area affected was deemed blighted, but not everyone agreed.
If Pittsburgh used eminent domain to seize every area in the city that could be "deemed blighted", there wouldn't be much left. Murphy's eminent domain shenanigans resulted in many long-time merchants in the Fifth & Forbes corridor packing up and leaving. And what's there now? A lot of empty retail space. If he wants to seize that space for "economic development", he's free to do so now. While he's at it, how about the rest of downtown Pittsburgh as well? South Oakland is pretty bad, too. Kick out the college students and street gangs so that you can raze the neighborhood to build strip malls. You know how eager those big time retailers are to open up inside the city limits. (Yeah, right.)
The wisdom of the court's ruling ought to resonate in Pittsburgh, where the understanding of "public use" long ago brought public benefit.
And so the editorialist concludes with the word that cements the court's ruling in this case as infallible: Wisdom. Very nice, that. Try going into a candy store, grabbing a Mars bar, and walking out the door without paying for it. Then try explaining to the store manager, the policeman, and the judge that your "taking" was rooted in "wisdom". But that's not the same thing, you say. The stolen candy bar would not benefit the public, just the individual who stole it, if he could get away with it. And you would be correct.

But somehow, the United States Supreme Court has seen fit to let local government walk out of the shop with the candy bar of "public use". Let the city of Pittsburgh displace private property owners and put up "economic developments" in their place. I have a feeling that you would end up with a bunch of storefronts that would be just as empty and useless as a mouthful of rotten teeth after too many candy bars.

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