What was the Supreme Court Thinking? First in a Series

We at the Blasphemy Blog have decided to begin regularly contributing our two cents to the analytical morass that emerges with every new Supreme Court decision. Legal babble will inevitably result. You have been warned.

So. Kelo v. City of New London. A small, economically depressed New England town wants to redevelop its dilapidated waterfront. In the way of such things, it’s got developers lined up to do it. The thing about waterfront property, after all, is that they’re not making any more of it, except in the Netherlands. And if the waterfront is redeveloped, there will be new jobs and there will be new property tax revenue. The town goes about buying up property for the redevelopment project, and tearing down the old houses.

There’s only one problem: not everyone wants to sell. Even though it’s a depressed neighborhood, there are still people who live there and some of them have actually remodeled their houses and lived in them for decades and have a lot more than just money invested in them. The city is offering good money, but they don’t care.

So the city exercises its power of eminent domain and forces them to sell.

Is this allowed? The Connecticut Supreme Court said it was, and now the United States Supreme Court says it is. Justice John Paul Stevens, writing for the majority of five justices, writes that seizing property through eminent domain for purposes of economic development is a time-tested and -accepted power of local governments with which the federal government ought not to interfere.

The human cost of such a decision is now in all the newspapers, and her name is Wilhelmina Dery, who has lived in her house since she was born there in 1918 but who will now be forced to sell to her hometown’s government. Interestingly, it is the four liberal Supreme Court Justices (Stevens, David Souter, Ruth Bader Ginsburg, and Steven Breyer) who want to kick her out. (They were joined by Anthony Kennedy, who is conservative but also somewhat wishy-washy.) Meanwhile, the conservative justices, William Rehnquist, Clarence Thomas, Antonin Scalia, and Sandra Day O’Connor, all sided with Wilhelmina Dery.

How does this make sense? Aren’t the bleeding heart liberals supposed to stand up for the old and infirm, with the steadfast conservatives shaking their heads over how they hate to do it, but it has to be done? Well, there’s more here than meets the eye.

The power of eminent domain is also used by localities to create parks, bike paths, and nature conservancies. The liberals on the court undoubtedly had their eyes on the larger prize of the power of eminent domain, which promotes the greening of the public space. The conservative justices, on the other hand, are standing up for the libertarian view of property rights, which is that you never have to sell for any reason, even if you’re a slumlord and the city wants to put in affordable housing.

The desire to control one’s private property is deeply ingrained in the American psyche, which is why we dedicated a whopping ten percent of the Bill of Rights to something as trivial as whether you have to quarter soldiers in your house. But we Americans also like our green space, and without eminent domain, there would be a lot less of that in the American city.

Matters are not helped by the fact that economic development projects like this tend to be sinkholes of corruption, with the developers and the city councils in cahoots and Wilhelmina Dery on the outside looking in. The politicians always claim that these projects will result in jobs and tax revenue, which means more money for everyone, but this only works if everyone involved is honest. And usually, they’re just not. Plus, Wilhelmina Dery, who is, after all, ninety-seven years old, probably doesn’t care about all that; she just wants to live in her house.

Obviously, the best solution would be for local governments to use the power of eminent domain responsibly and humanely. In the absence of that, though, we guess we’ll just have to take the parks, which are a pleasant side effect of an often-abused but necessary government power.