Jacob Sullum

The New York Times welcomed the Supreme Court's recent endorsement of virtually unfettered eminent domain powers as "a setback to the 'property rights' movement." The fact that the Times not only celebrated a defeat for property rights but felt a need to put the phrase in scare quotes speaks volumes about the left-liberal misconceptions that have been brought to the fore by the Court's decision in Kelo v. New London.
 
According to the Court, the Fifth Amendment, which allows the government to take property "for public use" provided it pays "just compensation," is a license to transfer any parcel of land from its current owner to someone the government thinks will make better use of it.

 "Under the banner of economic development," noted Justice Sandra Day O'Connor in her dissent, "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."

 In an editorial headlined "The Limits of Property Rights," the Times called this decision "a welcome vindication of cities' ability to act in the public interest." It said the redevelopment plan at issue in Kelo, which involves leveling the Fort Trumbull neighborhood of New London, Conn., to make way for a conference center, restaurants and shops, "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 collectivist logic here is worthy of a Soviet central planner: The government decides what "the public interest" is and allocates resources accordingly, without regard to the private plans of the individuals who happen to own those resources. It's OK if people are hurt in the process, because on balance, the welfare of the group will improve.

 For the Times, acting in the public interest includes reassigning property rights based on the government's determination of which owners will generate the most tax revenue and jobs. In New London, the public interest happens to coincide with that of Pfizer, which inspired the city's redevelopment plan when it decided to open a new research facility adjacent to Fort Trumbull. In New York City, the public interest happens to coincide with that of The New York Times, which used eminent domain to forcibly obtain the land on which it is building its new headquarters.

 Mindful of the appearance that big corporations such as Pfizer and the New York Times Co. use eminent domain for their own ends, the Times cautioned that "eminent domain must not be used for purely private gain." But as O'Connor noted, "nearly any lawful use of real private property can be said to generate some incidental benefit to the public." If the Fifth Amendment requires only that a taking provide some such benefit, she wrote, "the words 'for public use' do not realistically exclude any takings."

 The Times, even while mentioning its own abuse of eminent domain, conceded that O'Connor raised "a serious concern." But it called her fears "exaggerated," since "the majority strongly suggested that eminent domain should be part of a comprehensive plan."

 So, contrary to the alarming reports you may have seen, the government cannot simply force you to sell your home or business, at a price of its choosing, for the convenience of a developer, a big-box retailer or some other politically influential land grabber. It has to have a plan first. Maybe.

 The nonchalance of the Times regarding eminent domain abuse is of a piece with its derogation of property rights, which it sees as inferior to so-called human rights. (Try to imagine the Times running a celebratory editorial on "The Limits of Human Rights.") Yet property rights are human rights: Your ownership of your house stems from your ownership of your body and the fruits of your labor.

 In this light, all rights are property rights, without which it would be impossible to exercise, say, freedom of religion or freedom of the press. How free would The New York Times be if people could occupy its offices at will?

 Then again, since the owners of the Times have implicitly identified the paper's new digs as a "public use," perhaps they wouldn't mind.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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