Yet More Eminent Domain Nonsense

For the second time in less than a week, the New York Times has published an op-ed critical of the Supreme Court's recent Kelo decision. In the first, John Tierney encouraged Justice O'Connor's successor to take a tour of Pittsburgh. Now in today's Times, guest contributors Paul Bass and Douglas Rae take us on a tour of New Haven to highlight the damage that can result from the government's use of its eminent domain powers. The authors describe the Court's Kelo decision as "one of the most shocking Supreme Court decisions in recent history." Bass and Rae, like Tierney and like many others the last few weeks, argue that economic redevelopment projects have done more harm than good, that inner city residents have their homes taken away for the sake of projects that primarily benefit the wealthy and special interests. Is this true? Perhaps. I don't know. But I do know that their criticism of the Kelo decision is totally misguided.

As I've pointed out in previous posts (here and here), the Supreme Court long ago determined that economic redevelopment projects are a valid "public use" under the terms of the Takings Clause. If Bass, Rae, and Tierney had bothered to read the Kelo opinion, they would know this. The question in Kelo was a narrow one: whether or not takings for economic redevelopment are limited to "blighted" areas. In other words, even if the dissenters had prevailed, the type of projects the authors describe would still have been allowed. The poor communities of Pittsburgh and New Haven would have been no better off. Indeed, they would have been worse off, for if the dissenters had prevailed, middle class and affluent neighborhoods would have been exempted from such takings, which would have eliminated a very important political check on the government's exercise of eminent domain power. Such a middle class exemption would only have cleared the way for the very "slum clearance" types of projects that the authors find so repugnant.

Moreover, Bass and Rae, like Tierney before them, offer nothing but policy arguments. It's as if the words of Constitution itself are totally irrelevant. Perhaps they should direct their policy arguments toward the policymakers. The Court merely affirmed that the government has the power of eminent domain, but it doesn't have to use that power. If they care to, legislatures can pass laws that restrict its use. If these commentators would just do their homework, they would know that they are making their case to the wrong audience.