An Oct. 9 Outlook article, in describing a New London, Conn., redevelopment project that was the subject of a Supreme Court ruling on a municipality's power to seize private property by eminent domain, may have left a misimpression about a new research center owned by Pfizer, the pharmaceutical company. Pfizer bought the land for the center; the parcel was not part of any acreage assembled through eminent domain. New London officials saw the Pfizer facility as a "catalyst" for the area's rejuvenation, the ruling said, but it was not part of the Fort Trumbull redevelopment plan challenged in court.
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The Powers of a Few, the Anger of the Many
The letters, columns and commentary that followed the decision had a common theme: The government's motives were suspect. The city of New London might have invoked the "public good" in explaining its redevelopment plans, but the opponents of Kelo saw the government as a too-eager partner of private interests -- in this case, Pfizer.
There's a deeper distrust at play here. Many opponents of Kelo feel alienated from their elected leaders, and, with respect to property rights, disenfranchised. It's not just that government can seize your property, it's that government is taking it to benefit people who matter more -- because they can pay more.
The Institute for Justice, which represented Susette Kelo, has compiled a list of over 10,000 such "abuses" of eminent domain. Among them: Ace Hardware convinced the city of Mesa, Ariz., to condemn a nearby auto repair shop so that it could build a bigger store. Donald Trump, using the leverage of a local redevelopment agency, tried to evict an elderly woman from her Atlantic City home.
It seems everyone can dream up a different, well-heeled villain. A Florida man, in a letter to the editor, tells a cautionary tale about a mobile home park condemned to make way for a townhouse development. A professor writing online in the Volokh Conspiracy, a blog about legal issues, warns that Wal-Mart will be able to capture city governments and leapfrog over citizen opposition. Justice Sandra Day O'Connor, in her Kelo dissent, lists the Motel 6 chain and Ritz-Carlton hotels as likely beneficiaries of future eminent domain decisions.
Though multinational franchises make easy rhetorical scapegoats, the real problem here is a malfunction of democracy. Hurricane Katrina revealed a dangerously entrenched caste system in America; Kelo alerted members of the middle class that they weren't at the top of it.
When the people in power are not affected by the decisions that affect everyone else, citizens have good reasons to start distrusting government. Some eminent domain opponents have turned to action: an enterprising Californian has filed a petition to condemn the New Hampshire home of Supreme Court Justice David Souter, who voted with the Kelo majority. This proposal made a forceful statement because it turned the tables on someone in power -- one unlikely to have his home seized because he is a member of the elite.
The stories of New Orleans and New London do not fit easily into the one-dimensional narratives favored by friends or foes of eminent domain. The situation in New London is a time-extended version of the crisis in New Orleans. The lawmakers in New London observed a long trend of economic decline, which would culminate in the city's obsolescence if government did not intervene. The city benefited from having time to make a choice about its future, but has lost public support exactly because it had time to choose otherwise. Now a state moratorium on property seizures has stalled the plan yet again.
New Orleans, meanwhile, saw its demise in the course of days instead of decades. There was no choice but to create a package of initiatives that would bring in the private sector to assist in the rebuilding effort. Eminent domain, in some areas, may be the only answer.
The urgency of government planning in New Orleans, however, is offset by the fact that the first contracts went out to some of the usual suspects -- namely, corporations with strong ties to the administration in Washington. After an outcry, govenrment officials promised last week to open the Katrina contracts to competitive bidding.
Neither New London nor New Orleans presents a clear case of representation at its finest, nor cronyism at its worst. What matters is that citizens are increasingly likely to see only the latter. Just as the future of New Orleans depends upon the ruling in Kelo , the legacy of Kelo will depend on how government uses New Orleans to erase the fault lines of class that the case laid bare.
Judy Coleman, a third-year law student at Yale University, edits the Pocket Part, the online magazine of the Yale Law Journal.