Right of Way magazine is a specialized publication of the International Right of Way Association, that caters to eminent domain professionals — right of way agents, appraisers, relocation consultants and condemnation lawyers. That being the case, it shouldn’t be surprising for it to favor condemnors’ positions. But the latest May/June 2008 issue has gone over the top.
A Right of Way cover article entitled Perception v. Reality: Media Bias in Reporting Kelo, presents the readers with a whole new conspiracy theory. Why are Americans overwhelmingly teed off at the Supreme Court for deciding Kelo the way it did? Is it because of the absurdity of forcibly acquiring private, middle-class homes in order to kick out their inhabitants, turn their razed sites over gratis to redevelopers, and then adding insult to injury, call all that a “public benefit”? That’s what you might think, but the authors of this article, James Brooks and William Busch don’t (Busch, by the way, happens to be a manager of the Fort Trumbull redevelopment project, so it’s easy to understand why he would feel all bent out of shape by the fierce public reaction to the Kelo case).
According to Busch and Brooks (B & B) the Kelo project was just a Jim-dandy civic-minded municipal effort to revive New London. So how come the overwhelming majority of right-thinking Americans thinks otherwise? Because by and large, the people understand the difference between ends and means, while B & B don’t. According to B & B it’s the fault of the media — the journalists done it. It’s those media nabobs who misled Americans into believing that kicking people out of their lower middle-class homes for the sake of enriching redevelopers and their upscale customers wasn’t a “public” use. And how come the media did this dastardly deed after decades of favorable coverrage of urban redevelopment? We’re glad you asked. It was all the doing of those evil libertarians at the Institute of Justice, the public interest law firm that represented Suzette Kelo and her neighbors in the U.S. Supreme Court. Without their ministrations, argue B & B, everything would have been hunky dory and peachy keen — the press wouldn’t have covered this outrage as it did, and it would have been business as usual in New London.
There is much more that could be said here, but in a tour de force of self-restraint, we won’t. Let’s just say that B & B ought to reflect on the wisdom of the old proverb that if enough people tell you you’re drunk, it may be a good idea to lie down and sleep it off instead of arguing about it. Whatever may be said of the Kelo decision, it seems incontestable to us that it was, if nothing else, a case of legal reductio ad absurdum even on its own legal premise — the Court simply lost its sense of proportion and went too far. Its unabashed extremism reminds us of the line of California’s late, great Supreme Court Justice Otto M. Kaus, who once criticized his colleagues for going to far, by observing that “we have learned how to spell ‘banana,’ but not when to stop.”
In the end, Kelo did not so much raise a question of law as it did one of meaning of the English language. It shouldn’t take a legal education to realize that “public use” does not mean private enrichment. Period. B & B can quarrel with that proposition all they want, but it won’t wash and it won’t change the justified public perception one bit. As Honest Abe Lincoln put it, you can fool some of the people all of the time, and all of the people some of the time, but you can’t fool all of the people all of the time. There comes a point beyond which the absurdity of a particular governmet position becomes obvious to the people on a large scale and no amount of self-serving quibbling can change that.
Update. For an insight into what is really going on in New London, see Plans Stall in Fort Trumbull: Land Remains Barren After Homes Torn Down, Eyewitness News 3. The title says it all. To read the full story go to: www.wfsb.com/news/16279677/detail.html