Eminent Disdain

No greater eminence in our democratic form of government than that of the Supreme Court, the unquestionable repository of justice for even the least amongst us. Yet, no greater disdain for justice than that just exhibited by that same Supreme Court in a decision which resembled more a policy verdict than a judicial finding.

Susette Kelo and her New London neighbors have been reminded in no uncertain terms that they, just like most of us, are only invited orphans at the family discussion table headed by Father Power and Mother Influence… at least in property matters.

Eminent Domain may have the same etymological roots it had two centuries ago, but the application of that dominium eminens (supreme lordship) has evolved dramatically during this period. And it has taken what might be characterized as an irreversible turn during the past two decades, defining the property rights of individuals in subordinate ways… something unthinkable a generation ago.

Three landmark decisions charted this evolution. From an exercise of government power in extreme and urgent cases (Vanhorn’s Lessee v. Dorrance in 1795); to the realm of “public purpose” conditioned to a narrow exception designed to revive a blighted, rat-infested neighborhood (Berman v. Parker in 1954); to the catchall “public benefit” classification in which property that can be used to promote economic development may be condemned… as was the Thames-view neighborhood in New London, Connecticut (Kelo v. New London in 2005).

Can we, in good conscience, say that if the many benefit, the few should not make such ballyhoo… particularly when fair and just compensation is made? It seems as if that section of progressivism in our souls is tempted to allow the tentacles of eminent domain to grow; for economic development; for jobs; for the needs of the community… for whatever benefits “the many.”

No doubt that the so-deemed liberal members of the Court (Bader Ginsburg, Breyer, Souter and Stevens) aided by a moment of “liberal lucidity” from Justice Kennedy listened to those progressive palpitations and huddled as a majority for the 5-4 split decision siding with the municipality of New London against those panorama-gifted folks whose homes overlook the Thames River. Perhaps such action was taken in deference to city governments, and their established acumen in urban renewal.

The days when stockholders’ interests reigned supreme in Corporate America are fast disappearing, management always finding ways in which to usurp power and establish its own rule. In like manner, at the local government level, where the purest form of democracy should have established primary roots, elected and “selected” leadership keeps emerging… often with a self-imposed moral mandate to determine “the greater good for the community,” often trampling on individual rights in the process, as was the case in New London.

But just as sad as the loss of property rights, which I prefer to call “personal rights” to acknowledge the existence of an added intangible element to property, is the fact that such loss may be incurred without benefit to the many, as assumed.

In fact, treating economic development and job-creation in a localized or static way can be extreme folly within the context, the dynamics of a mature economy like ours. Economic development, as beneficial as it may appear to a community, may incur an equal or greater cost (negative benefit) elsewhere. It applies to jobs, taxes and other developmental components. The reality in economic development and job-creation has less to do with a competitive free enterprise, and more to do with a predatory system that shifts job-creation from one community to another, often with a labor-income net loss. And usually such “development” takes place after tax subsidies are exacted from the “renewed” host community by those wielding the power.

For all the good intentions by local officials to promote economic development in their communities, they may have helped create an economic development bubble… one likely to burst, affecting taxpayers’ pocketbooks. Underutilized convention centers, sports arenas, hotels and tourist attractions… could soon prove to be boondoggles or worse. Yet, Justice Stevens believes these officials to be well suited to know what’s best for their communities as indicated in his writing for the majority.

With all due respect for both their high offices, and their serene persons, these majority Justices have erred reaching this decision on a doubly critical count. Several New Londoners have been bullied, their rights violated… and all the while there was nothing to prevent the Coast Guard, Pfizer and other private interests to do their thing outside the Fort Trumbull neighborhood.

An eminent domain problem has found, I am afraid, an eminent disdain solution.