DOWN BY LAW:

Ominous Domain:
Death by Government or Death By Property?
By A. Kronstadt

On June 23, 2005, the U.S. Supreme Court handed down a 5-4 decision affirming the right of the government of the City of New London, Connecticut, to raze an entire working class neighborhood of private homes in order to transfer the properties to private corporations as part of a waterfront development project. This decision was in response to a suit brought by the homeowners (Kelo v. City of New London, No. 04-108).

Although the plaintiffs did not challenge the city government's ability to take over property in the public interest, a power known as "eminent domain," they contended that "public use" as defined by the Fifth Amendment, refers to something like a school or a project directly dedicated to public service. The private sector development project in New London, which would include a marina, office buildings, upscale housing, and a $300 million research facility for pharmaceutical giant Pfizer, would be designed to generate tax revenue for the city. At a time when the inflated real estate market is threatening older, established communities with over-development and displacement, the Kelo decision leaves those at the lower end of the property food chain (tenants and homeowners), without legal recourse on the federal level against real estate developers and the politicians they carry in their pockets.

The lineup of the Supreme Court Justices who voted for and against in Kelo v. New London was surprising. Justice John Paul Stevens, the High Court's most consistent liberal, wrote the decision, with the endorsements of Clinton appointees Ruth Bader Ginsburg and Steven J. Breyer. Reagan appointee Anthony Kennedy, one of the more conservative justices, also joined with the majority. The most obstinately right-wing Justices on the court, William Rehnquist, Antonin Scalia, and Clarence Thomas, were on the dissenting side--strange bedfellows, for a change, of the little guy. They were joined by conservative Reagan appointee Sandra Day O'Connor, who wrote the dissenting opinion. O'Connor has since retired from the court.

As previously reported in The SHADOW, a group known as the Federalist Society, consisting of right-wing lawyers and judges that include conservative Supreme Court Justices Scalia, Thomas, and John Roberts (who joined the court after the Kelo decision), has mapped out an effort to eliminate what they consider government regulation under the clause in the Fifth Amendment that prohibits the taking of private property for public use without just compensation. Their campaign targets laws limiting the rights of property owners, such New York City's rent control and rent stabilization, and environmental regulations restricting the dumping of waste in rivers and streams located on private property.

There appear to be two political factions on this issue: one is conservatives, such as the Federalist Society and the anti-rent-control nuts who want to give private property owners full power to trample on the populace, and the other is "eminent domain" liberals who want the government to have that same power.

Although the court's decision in Kelo vs. City of New London could be interpreted as a slap to the property-rights and anti-rent-control extremists, it is also a slap to pretty much everybody else who is neither part of the government, nor a real estate developer. It gives the government carte blanche to dismantle entire neighborhoods at will. "Under the banner of economic development," Justice O'Connor noted in her dissenting opinion, "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public."

Though the Kelo decision mainly prevents recourse on the federal level to those fighting condemnation and eminent domain and the taking of their property for private use, these cases can still be fought on the local, city and state levels.

Still, the sinister implications of Kelo are mitigated by the fact that it really doesn't change things all that much, at least not in New York City. Eminent domain has long been abused in order to destroy communities and enrich real estate plutocrats. It was eminent domain that allowed the LaGuardia administration to raze the entire Gaslight District, an area on the Lower East Side consisting of low rent tenement buildings, inexpensive hotels and bars, and turn the properties over to the Metropolitan Life Insurance Company, which erected the Stuyvesant Town apartment complex on the site. It was eminent domain that allowed unelected city "construction coordinator" and "master builder" Robert Moses to decimate neighborhoods throughout the city, condemning and demolishing housing for the construction of roadways, bridges, and tunnels charging tolls that were pocketed by Moses, and for Moses' pet projects such as the United Nations and Lincoln Center--under the auspices of "urban renewal," a large tract of the city was simply erased to make way for the new structures.

As part of the massive Times Square Redevelopment Project which came to fruition in the 1990s, the city and state forced owners of the old theaters on 42nd Street, between Seventh and Eighth Avenues, to sell. The result of that kind of eminent domain, in which property is condemned by the government and turned over to private parties, is to provide bargains for those who are already wealthy.

A June 24, 2005 editorial in the NY Times, entitled: "The Limits of Property Rights," referred to the Kelo decision as "a welcome vindication of cities' ability to act in the public interest." "The leveling of the working class Fort Trumbull neighborhood of New London," according to the Times pundits, "may hurt a few small property owners, [but] many more residents are likely to benefit if the city can shore up its tax base and attract badly needed jobs." 

The NY Times does not have a completely objective perspective on this subject, however. As with the other parts of the Times Square Redevelopment area, the site of the Times' new block-long headquarters, now under construction at 40th Street and Eighth Avenue, was acquired through the use of eminent domain and the condemnation and demolition of buildings along Eighth Avenue, which housed long-term tenants and small businesses. The Times has announced that no low-end businesses will be permitted in the ground floor commercial spaces of its new state of the art building. There is no indication that this real estate giveaway to the Times is beneficial to the public, but the Times happens to be at the top of the food chain, so the big meal is theirs.

In a direct response to the Kelo decision, on November 4, 2005, the House of Representatives voted 376 to 38 to pass the Private Property Rights Protection Act of 2005, a bill that would withhold federal money from local and state governments that use eminent domain powers to seize homes and businesses for the purpose of private economic development. Although it was pushed through the House by right-wing legislators such as Republican James Sensenbrenner of Ohio, this may be one of those rare cases where the right wing is, perhaps accidentally, on the right side.