More Eminent Domain Nonsense

John Tierney's op-ed in this morning's New York Times was one of the more astoundingly stupid columns I've seen in a quite some time. The column begins with the following questions:

"Two questions I'd like to ask candidates for Sandra
Day O'Connor's job:

1. Does the Constitution forbid the government from
seizing your home and giving it to someone else?

2. If you're not sure, would you be
willing to tour Pittsburgh before taking this job?"

As the folks at the Daily Howler pointed out today, the most obvious response to these questions is "how would a tour of Pittsburgh help someone know what the Constitution forbids?" That's a very good question, but Tierney's piece is actually far dumber than even that response suggests.
First, it's clearly addressed to the wrong audience. As Tierney acknowledges in the column, O'Connor was among the dissenters in Kelo. So why does it matter what her successor thinks about eminent domain? If Tierney is going to dedicate an entire column to O'Connor's successor, why not choose an issue on which her opinion actually mattered? But more importantly, why is Tierney directing his comments to a prospective member of the Court at all? Eminent domain is not like abortion; it's not an issue over which the courts have exclusive power. Federal, state, and local governments choose to exercise their powers of eminent domain. They certainly have the power to restrict their own use of it. If Republicans are so worked up about their sudden discovery of the eminent domain power, maybe they should pass a law. Maybe Tierney should take Republican legislators on a tour of Pittsburgh. Wouldn't that make a whole lot more sense? A judge, after all, is unlikely to learn what the Constitution says by touring Pittsburgh, but a politician might actually learn something about the effect various policies have on poor communities.

Finally, Tierney's entire column underscores the fact that he has no idea what was actually decided in the Kelo case. As I discussed in a previous post, the Court in Kelo did not decide whether the Takings Clause "forbid[s] the government from seizing your home and giving it to someone else," as Tierney suggests. That issue was settled 50 years ago in Berman v. Parker. The question in Kelo was whether the power to take property for economic redevelopment was limited to "blighted" neighborhoods, or whether it was applicable to all property. If the Court had sided with O'Connor, the eminent domain power would have been limited to only the poorest of neighborhoods. Development projects like the ones Tierney describes would not have been affected at all. Indeed, the poor, predominantly black neighborhoods of Pittsburgh would be even worse off because all the middle class and affluent neighborhoods of Pittsburgh would be safely out of the government's reach. As Doug Kendall pointed out on the ACS Blog last week:

"the answer proposed by Justice O’Connor, which would
have exempted the middle class from the use of eminent
domain for economic redevelopment, would have made it
less, not more, likely that the political process will ensure
that eminent domain is employed in a way that adequately
protects this country’s most vulnerable citizens."

So, if anything, a tour of Pittsburgh should convince any prospective Justice that the Court made the right decision in Kelo. Keep up the good work, John Tierney!