November 12, 2009

The moral of the Kelo story

By The moral of the Kelo story

Author: Luke Wake

This week Pfizer announced that it was closing down its offices in New London, Connecticut. This marked a sardonic conclusion to Susette Kelo’s sad story. She lost her home in a long and bitter fight against the City of New London which sought to take her property through the power of eminent domain to give to a private developer. The plan was for the City to take her property and to give it to the developer, who would then build condos and a convention center, all of which was intended to encourage people to visit the Pfizer facility and to promote the City's economy.  

While government may use the power of eminent domain to take private property for public purposes, it was traditionally understood that those purposes were limited to things like the construction of highways, bridges and other such projects. But, in the Kelo case, the government was seeking to take her property not for the benefit of the public, but for the benefit of private interests. In an infamous opinion, the Supreme Court upheld the practice. The Court concluded that the government could take private property so long as the political process concluded that the taking would ultimately be in the public’s best interest.

It was evident that the Court had placed a great deal of stock in the fact that the City had gone through the ‘democratic process.’ After all, the decision to take the property, and to give it the private developer, was based upon the political judgment of elected representatives of the people; they had held public meetings and reviewed reports. The Court essentially found that we ought to defer to the judgment of elected officials in these matters.

Evidently the City of New London’s judgment was poor in concluding the development would rejuvenate their community. Susette Kelo lost her home, and ultimately Pfizer is leaving town. There are no winners in this story.

Professor Paul Finkelman of Albany Law School, recently commented, in a New York Times Blog, concluding that, "The cautionary tale in New London is that governments trying to stimulate economic development should be smarter and negotiate harder with private industry, not that cities or states should be handcuffed from using law and eminent domain for the vital public purpose of economic development." – I respectfully disagree.

The lesson to be learned from this story is that the democratic process is capable of stomping on the rights of individuals. Susette Kelo lost her home because private interests were able to lobby New London to take her property for their benefit. Instead of deferring to the government's judgment as to what serves the public interest, we ought to be concerned with protecting the constitutional rights of individuals.

Professor Finkelman apparently thinks we just need "smarter government," but the real issue is not whether government will make wise economic choices; the real issue is whether government will violate the rights of the people it is supposed to protect. In any event, the City of New London has demonstrated that, we can't expect government to make wise economic choices any more than we can expect it to avoid stepping on the rights of its citizens. Government makes mistakes, but New London's mistake in this case wasn't just a poor investment, it was a failure to respect Susette Kelo’s fundamental property rights. 

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