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Saturday, June 25, 2005
Why the outrage?
Kelo | Posted by Nicole Garnett at 01:12 PM
I am not the one to defend the Steven's position: I wanted -- but did not expect -- the Court to come out in favor of the property owners in this case. I do agree with Marty that Thomas, not O'Connor, comes closer to explaining what needed to be done for the plaintiffs to prevail.
Marty raises an interesting point: Why, if Kelo changed nothing about the law, are people so upset by the decision?
My sense is that the outrage over Kelo really isn't about the law. The outrage reflects two things: (1) the American ideal of equality ("HOW DARE THE GOVERNMENT TELL ME SOMEONE ELSE WILL PUT MY PROPERTY TO A BETTER USE!") And, (2) The extent to which, as Peggy Radin argues, our property becomes tied up in our personhood. For various reasons (the endowment effect, sentimentalism, the fact that our property situates us in community, etc.), we become deeply attached to our property and outraged at the thought that the government might take it -- and our communities -- away from us.
Mirror of Justice has an interesting series of posts about takings, community, and justice. (In the interest of full disclosure, many of them are by the very talented Rick Garnett, with whom I share a home and three children.)
I was particularly intrigued by the comments of Dean Mark Sargent of Villanova Law School. Mark grew up in New London and speaks eloquently of the loss of old neighborhoods through this redevelopment project and others in the past. ("When I think about this case, I see first what is gone -- an old Italian neighborhood, with a few Irish leavening the mix (but very few of what we called "Yankees" back then - and I don't mean Joe DiMaggio).")
But still Mark agrees with the decision:
"By 2005, the Fort was no longer a community. It was mostly dead and gone. Very few people remained -- most had left not because of the new pressure for economic development but because of decades of deindustrialization and white flight in the surrounding areas. I deeply sympathize with the attachment of the few remaining people, mostly elderly Italians (like my own relatives), too frail, frightened or stubborn to move. But if the balance point is not the inviolacy of property rights, but the needs of community (by which I mean something more specific than the common good), then the scales tilt toward the deeply impoverished old city of New London, desperate for tax revenue to support a poor, isolated and highly dependent population."
With respect, I disagree with Mark. But I think that his post captures what this case was really about. Kelo pitted the outrage of those justices who couldn't BELIEVE that the government is permitted to take property simply to upscale it against the sympathy of justices who couldn't BELIEVE that the Court would stand in the way of the efforts of a dying industrial city to better itself. The latter position prevailed in the Court, as we all expected. But, the former prevails in the hearts and minds of most real people, which is why people are so upset by Kelo, why it is so fun to teach public use cases in Property class, and why IJ has been so successful in the court of public opinion. (On the latter, see www.castlecoalition.org.)
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Comments
"Marty raises an interesting point: Why, if Kelo changed nothing about the law, are people so upset by the decision?"
I'm afraid your answers give people too much credit. The way the media played it, it seemed that "activist" judges created new law with this decision. Most people were somehow unaware of this law. My husband is an example of one who is very upset (he thinks that now for the first time our town can take our house and replace it with a Wal-Mart?!) and still barely believes me that the ruling was "conservative" in the sense of resulting in less change.
Posted by: SusanJ at June 28, 2005 12:39 AM