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August 18, 2005
By Auntie Pinko

Dear Auntie Pinko,

The recent eminent domain ruling by the Supreme Court has me a bit perplexed. If I understand it correctly, it gives the government the right to take away private land so that it can be used for the advancement of the community. This law has been around for a while, but the new law states that the land taken away can be given to private developers as well.

This seems like a blow to personal ownership rights and a win for big business, things that I associate mostly with Republicans. Why then would the left-leaning justices vote in favor of the ruling? I am having a hard time explaining to conservatives that liberals like myself do NOT support this ruling.

Thank you,

Alfredo
Atlanta, GA


Dear Alfredo,

You are not the only one who finds eminent domain confusing. With the possible exception of some of the most extreme Libertarians, everyone agrees that the government needs the power of eminent domain. But the consensus stops right there, because there is little to no agreement on what constitutes an appropriate "public purpose," and what are fair levels of compensation to property owners.

And this is also one of those rare instances where party lines mean very little. Both Republicans and Democrats find certain aspects of eminent domain objectionable, and both Republicans and Democrats find certain aspects of eminent domain admirable. A good case can be made for almost every application of eminent domain - to somebody. The same case, however, will strike someone else as a boondoggle, or folly, or political haymaking, or even outright corruption.

When Auntie Pinko was younger, America was in the process of creating the interstate highway system, which involved perhaps the most far-reaching and extensive invocation of eminent domain in the nation's history. Thousands of miles of interstate highway were built, and although many of them were built on existing roadways, the demands of the new roads required much more property and resulted in a great many people losing homes, farms, and businesses. There were bitter fights as whole neighborhoods were destroyed - often neighborhoods of low- and moderate-income housing and families.

In some places the effects of that destruction still reverberate today, as communities shattered by the losses have never reconstituted. Urban decay and crime were the legacy that such takings left in their wake. Yet for fifty years, America has also enjoyed the decreased shipping costs, increased mobility, and economic boost of the interstate highway system. Was it ultimately a beneficial use of eminent domain?

In the 1960s, many municipalities used eminent domain freely to "renew" the decaying inner cities, some of which were the results of that earlier destruction. Vast public housing projects were undertaken, with the laudable (and wholly liberal) goal of producing decent low-cost housing for the urban poor.

We see a good deal of media coverage about the public housing movement's spectacular failures in cities like Chicago and New York. There is much debate about whether such public housing efforts actually produced more benefits than costs, and there were, indeed, many unsatisfactory results. But there is less discussion and attention given to the many projects that worked well and provided safe, affordable, decent housing for thousands of families. Was it a good idea to use eminent domain for such projects?

The current uproar is not about any one "new" law, Alfredo. Rather, as you note, it is about a public jurisdiction (city, county, etc.) declaring eminent domain and then turning over the property to a private developer for purposes that are arguably "public" in the sense that some theoretical economic benefit to the community as a whole results. But this is not a new phenomenon, either. Some of the "urban renewal" projects of the 1960s involved private developers. And in the 19th century, eminent domain deprived thousands of families of their property and turned them over to privately-owned railroad companies who anticipated a healthy profit from expansion.

Conservatives tend to view liberals as favoring the power of local governments to exercise eminent domain. This is partly based on the traditional liberal idea that the power of government can be productively activated to improve quality of life and address social problems, and partly based on liberal championship in the 1960s and 70s of those "urban renewal" projects to create affordable housing for the poor. However, while liberals generally do endorse giving government the power of eminent domain, they have actively opposed its use and advocated restrictions when they perceive the power as being misused.

Liberals, who are occasionally unclear about the distinction between traditional conservative ideology and libertarian ideals, associate opposition to eminent domain with a conservative viewpoint. Dogmatic opposition to eminent domain is more properly a libertarian ideal, as conservatives have supported eminent domain when it meets their notions of a properly "public" purpose, such as producing economic growth (and corporate profits) or military strength (and military contractor profits).

As real estate prices soar, we are now seeing another wave of eminent domain. Many of these takings are abusive, as in the case of an Ohio neighborhood declared "blighted" because of its small backyards and single-car garages. The property was given to developers to build upscale condos and retail facilities. When a few private developers succeeded in obtaining land without having to go through expensive and exhaustive purchase negotiations or bidding processes, other developers tried the same thing to remain competitive. They make a persuasive (and perhaps cash-based) case to local officials that their projects will produce "public benefit."

If "public benefit" is defined as "increased property tax revenues, more jobs, and the attraction of higher-income residents," it is hard to argue with these cases. Certainly an upscale condo project housing a dozen prosperous residents will produce more "benefit" to a town than the half-dozen or so older, shabbier, single-family homes it will replace - in the short term. It's an equation that is easily understandable - and appealing - to some of the factions dominating the Republican Party in America today.

But is it worth it in the long term? Will an America where the prosperous live in their gated communities on prime real estate, and are served by an ill-housed, ill-paid, unhappy and resentful class of service workers fulfill the vision of Thomas Jefferson, John Adams, and Benjamin Franklin? Auntie Pinko likes to think that traditional conservatives - real conservatives - are going to be the allies of America's liberal Democrats in preventing that from happening.


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