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Top 10 Letters

The Institute for Justice responds to John Hinderaker and hockey fans give their two cents.

12:00 AM, Aug 18, 2005
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THE DAILY STANDARD welcomes letters to the editor. Letters will be edited for length and clarity and must include the writer's name, city, and state.

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John Hinderaker's Second Thoughts on Kelo: A proper understanding of property rights suggests that the Kelo decision wasn't so bad after all, never divulges the "proper understanding" of property rights to which his article's subtitle alludes, but one can glean his position from his view of the Kelo decision: Property ownership is not as much a right as a privilege. If the government decides that there's a really good reason to force you to give up your property, so be it. You can't make an omlette without breaking some eggs, right?

But beyond Hinderaker's wrongheaded view of property rights, he gets a number of the particulars wrong as well. While it is true that eminent domain was not used to build a Pfizer facility in New London, Justice Thomas got it exactly right when he emphasized that the project was "suspiciously agreeable" to Pfizer. Indeed, Pfizer--the "10,000 pound gorilla," according to the City's expert in court--had every one of its "requirements" met in the development plan: a luxury hotel for its visitors, upscale housing for its employees, and office space for its contractors, as well as the overall "redevelopment" of the area adjacent to the Pfizer facility, where homeowners Susette Kelo and others reside.

Even without Pfizer's involvement, the use of eminent domain would still be objectionable on both legal and moral grounds because, as the Supreme Court recognized, the whole point was simply to transfer property from one private owner to another--a private developer--in the hope of obtaining more tax revenue and more jobs.

Hinderaker points out that eminent domain can still be used for legitimate public projects and then asks, "Are the rights of Americans any less imperiled by condemnation in support of publicly-owned projects?" Emphatically, yes, for the simple reason that if eminent domain is restricted to purely public uses, there will be fewer chances for eminent domain to be used.

Is it so hard to see that if government power is offered to the highest bidder, the result will be a lot of bids to use it? Indeed, the Institute for Justice documented more than 10,000 instances in which eminent domain was either used or threatened to transfer land from one private owner to another in only a five-year period. (See www.castlecoalition.org/report). Has the entire field of public choice economics, rent seeking behavior, and special interest influence escaped Hinderaker's notice?

Hindraker also believes that the "glare of publicity" and the constitutional requirement for "just compensation" sufficiently guard against abuse. Experience shows that that nothing could be further from the truth. Setting aside the 10,000 examples of well-publicized abuse, the Kelo case itself disproves the idea that the "glare of publicity" will stop tax-hungry municipalities from abusing their citizens' rights. For years, the homeowners have received sympathetic news coverage in national and regional outlets. Last week, hundreds of protestors from New London and around the country gathered to urge the City Council to let the homeowners stay and to develop the other 90 vacant acres it already owns. City officials were, to say the least, unmoved.

Ordinary citizens simply lack the clout of big-box retailers and deep-pocketed developers. In Newark, N.J., officials want to raze 14 downtown acres in the Mulberry Street area to build 2,000 upscale condo units and retail space. The Municipal Council voted against the plan in 2003--but then reversed its decision eight months later following re-election campaigns in which developers contributed thousands of dollars.

Moreover, Hindraker provides no evidence to support his claim that eminent domain victims are "compensated generously." How can they be when the government holds all the cards, especially after Kelo? Having no choice in the matter does not leave property owners in a very strong bargaining position. Of course, for Wilhelmena Dery, who has lived all of her 87 years in the same New London home, there is no such thing as "just" compensation. For relocated businesses, the loss of goodwill and prime location can be ruinous.

More to the point, the requirement to pay for the property is hardly an adequate check on abuse. Not only is "just" compensation often quite unjust and anything but generous, but developers often pay for acquisition and related legal costs--not the government. In such cases, there is no financial check on the abuse of eminent domain at all.