How Dahlia Lithwick Got It All Wrong

            Years ago, after we got our sea legs as a journeyman-lawyer, and as such gained an understanding of the ways of eminent domain law, we noticed an interesting phenomenon. Whereas people harbor all sorts of ideas of right and wrong, and understandably hold opinions on how a particular legal controversy should come out, lay folks are usually reluctant to get into the technical intricacies of the law. But not when it comes to eminent domain. Here, everybody is a maven. Case in point, Dahlia Lithwick, senior editor at Slate  on-line magazine. The New York Times Book Section of March 15, 2009, at p. 17, carries Ms. Lithwick’s review of Jeff Benedict’s new book LITTLE PINK HO– USE, that tells the tale of Suzette Kelo’s fight against New London, Connecticut, when the latter took her home – the iconic “little pink house” – in order to implement a municipal plan “to turn her neighborhood into a vast corporate playground for Pfizer, Inc., complete with a luxury hotel, a health club and sleek condos.”


            Benedict’s book has already received considerable attention, so we won’t rehash it here all over again. This is just to observe how our betters in the big-time media can mislead their readers. In Ms. Lithwick’s case it’s done by omission. In no particular order:


          Most important, Ms. Lithwick fails to inform her readers that the New London redevelopment project that was the cause of all this foofaraw, has been a gigantic, money-squandering boondoggle. It never got off the ground. For all the “careful planning” that New London sold to the Supreme Court in justification of this taking, nothing has been built on the Fort Trumbull redevelopment site (except for the renovation of a Coast Guard facility, which is a classic, unobjectionable “public use” within the meaning of the Fifth Amendment). The redeveloper was not even able to get financing – and that was before the crash. Over a decade after it was launched, and four years after the Supreme Court decision, the project area is a razed, vacant swath of urban blight that after destroying a well-maintained lower middle-class neighborhood, consuming over $80 million of state and city funds, and removing a 91-acre waterfront tract of urban land from the public tax rolls, has produced nothing. Zero. Zip. Nada, Bobkes. See our earlier blog, Lessons Learned in New London? Hardly. March 6, 2009.


         Second, she makes it appear as if the decision reached by the Supreme Court was the simplest, most cut-and-dried application of law imaginable. She chides Benedict because in telling the Kelo story, “the law itself barely gets a walk-on bit.” Which is hardly surprising because Benedict didn’t set out to write about law – by the time his book came along, reams of legal commentary had already been published, so he wisely stayed away from all that and focused on the human story instead. What could be wrong with that? Ms. Lithwick also conveniently overlooks that the Kelo decision, far from being a routine, cut-and-dried application of old-hat law, was the subject of a fierce disagreement among the Justices, and that the stinging criticism directed at the paper-thin 5-to-4 majority view came not just from those with a partisan stake in the outcome of this litigation, but also from four Supreme Court Justices. So maybe, just maybe, there was more of a legal controversy here than Ms. Lithwick lets on, but something that her lay readers are unlikely to discern from her review.


           Third, she criticizes Benedict for “fram[ing] legal questions as epic battles between haves and have-nots, between passionate humans and out-of-touch jurists.” But isn’t that exactly what happened? Wasn’t this a case of the city trying to benefit Pfizer, Inc., and its well-paid well-educated employees at the expense of the indigenous, blue-collar residents of the Fort Trumbull area? Didn’t Justice Stevens, the author of the majority opinion, all but offer a public apology in his remarks to the Nevada Bar Association, shortly after the Kelo decision came down? Didn’t he suggest by way of introduction to his remarks that some cases decided by the Justices call for “taking a mulligan”? Besides, hasn’t urban renewal been historically what comedian-turned-activist, Dick Gregory, aptly characterized as “Negro removal.”?  Hasn’t urban renewal been historically displacing hundreds of thousands of poor and lower middle-class city dwellers annually to make room for upscale, urban shopping malls, office buildings, car dealerships and even gambling casinos? For that story, check out Bernard Frieden and Lynn Sagalyn, Downtown, Inc. – How America Rebuilds Cities. And isn’t it universally accepted by people  knowledgeable about the ways of eminent domain that (as Columbia’s Professor Thomas Merrill put it) in American law, just compensation means incomplete compensation, with owners of businesses displaced by eminent domain left entirely uncompensated for the value of their businesses that are destroyed in the process, and cannot relocate?


         Finally, in a tour de force of something or other (we’re still groping for a suitable, printable characterization) Ms. Lithwick concludes by telling us that this was all a dispassionate application of state law, and she doesn’t mention that the controversy had nothing to do with state law – the U.S. Supreme Court lacks jurisdiction to decide issues of state law.  No, this was a federal constitutional issue, an interpretation of the meaning of the Fifth Amendment’s term “public use.” State law was only involved to the extent of deciding whether it met that “public use” constitutional limitation.


         So if Ms. Lithwick believes that “to turn [a] neighborhood into a vast corporate playground for Pfizer, Inc., complete with a luxury hotel, a health club and sleek condos” is any kind of a public use, it’s no surprise that her position is at odds with the vast majority of Americans who recognize such stuff for what it is: a private activity benefiting chosen private interests with public funds, and not any kind of “public use” that the Constitution requires.

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