Takings and the Public Interest

In a case that has split progressive bloggers--with such luminaries as Atrios and Belle Waring taking the side of the dissenters today--the Supreme Court has ruled in Kelo v. New London that New London's condemnation of property for private economic development was a constitutional taking.  This was expected after the oral argument, although the 5-4 decision was closer than many court watchers had anticipated.   For reasons I have discussed previously, I believe this was a good decision.  The key passage from Stevens' opinion is this: "[t]he disposition of this case therefore turns on the question whether
the City's development plan serves a 'public purpose.' Without
exception, our cases have defined that concept broadly, reflecting our
longstanding policy of deference to legislative judgments in this field."  I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle, and I understand what O'Connor means when she suggests that "for public use" might as well be deleted from the Fifth Amendment.  But once the courts start making determinations about what constitutes the "public interest,"  the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run.

It was interesting to hear the calls to NPR in New York this morning after the decision was announced.  People were outraged, taking about the remarkably destructive construction of the Cross-Bronx expressway (immortalized so memorably in The Power Broker and  All That Is Solid Melts Into Air), and about Jane Jacobs saving the Village from a similar fate.  It's important to know that today's decision would be wholly irrelevant to cases like this.  Unlike Kelo, where the Constitution's text can fairly support the readings of both sides, cases where land is expropriated for transit projects are easy; they are unquestionably constitutional takings.  If building roads isn't a "public purpose," it's not clear what is.  The lesson here, again, is the the Constitution does not provide a remedy for every bad public policy.  Combining upper-class tax cuts with increased pork-barrel spending, like the current administration is doing, is awful public policy, but it's constitutional, and the same goes for Robert Moses' grandiose road-building schemes.  You beat them the way the West Side Stadium was beaten; through politics.  Expecting the courts to protect poor property owners by determining which policies are legitimate public interests is a sucker's bet. 

While it will be buried, another interesting case came down today.  The court, unsurprisingly, ruled that Michigan could not deny counsel to indigent defendants because they had entered a guilty plea.  What's a little dismaying is that the decision was 6-3.  Three guesses as to the dissenters, and the first two don't count....

--Scott Lemieux

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