Lots of legal documents are difficult for most Americans to decipher (otherwise lawyers go out of business), but both the majority and dissenting opinions on KELO et al. v. CITY OF NEW LONDON et al. (available at <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108&friend=nytimes>) are relatively clear (extremely clear by the standard of legal discourse). So, as far as this case is concerned, I believe that Americans who are outraged by the decision are outraged because they actually understand the decision, which in effect allows "public use" to mean any old planned capitalist development whose benefits the working-class public may or may not enjoy, all too well.
This is what Justice O'Connor has to say in her dissenting opinion:
<blockquote>There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: "We deal, in other words, with what traditionally has been known as the police power." 348 U. S., at 32. From there it declared that "[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear." Id., at 33. Following up, we said in Midkiff that "[t]he 'public use' requirement is coterminous with the scope of a sovereign's police powers." 467 U. S., at 240. This language was unnecessary to the specific holdings of those decisions. Berman and Midkiff simply did not put such language to the constitutional test, because the takings in those cases were within the police power but also for "public use" for the reasons I have described. The case before us now demonstrates why, when deciding if a taking's purpose is constitutional, the police power and "public use" cannot always be equated. The Court protests that it does not sanction the bare transfer from A to B for B's benefit. It suggests two limitations on what can be taken after today's decision. First, it maintains a role for courts in ferreting out takings whose sole purpose is to bestow a benefit on the private transferee--without detailing how courts are to conduct that complicated inquiry. Ante, at 7. For his part, Justice Kennedy suggests that courts may divine illicit purpose by a careful review of the record and the process by which a legislature arrived at the decision to take--without specifying what courts should look for in a case with different facts, how they will know if they have found it, and what to do if they do not. Ante, at 2-3 (concurring opinion). Whatever the details of Justice Kennedy's as-yet-undisclosed test, it is difficult to envision anyone but the "stupid staff[er]" failing it. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1025-1026, n. 12 (1992). The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing. In this case, for example, any boon for Pfizer or the plan's developer is difficult to disaggregate from the promised public gains in taxes and jobs. See App. to Pet. for Cert. 275-277.
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108&friend=nytimes></blockquote>
Her criticism of the automatic equation of the police power and "public use" is to the point.
It is true that eminent domain has always been used in this fashion when it comes to taking lands occupied by the very poor and giving them to private developers and that, despite what Justice O'Connor says, it is not true that "[t]he specter of condemnation hangs over all property" -- technocrats who manage state and municipal governments won't use eminent domain to socialize Wal-Mart and the like.
It is noteworthy, however, that KELO et al. v. CITY OF NEW LONDON et al. is specifically an attack on "middling sorts" (working-class and petit-bourgeois homeowners, whose homes cannot be said to be "slums" that constitute "blights" and yet are not used "productively," generating jobs and tax dollars, by capitalist standards). It's like the "bankruptcy reform," which will also affect "middling sorts" more than the poorest (most of whom can't get much credit -- many of them probably don't even have checking accounts).
In Latin America, neoliberals are put on the defensive, facing working-class backlashes. In the United States, in contrast, neoliberalism has matured, so to speak, moving up the "difficulty scale" (from the poor to the "middling sorts") in terms of its targets. the Republican failure to privatize Social Security and Medicare notwithstanding.
Successful attacks on Social Security and Medicare will have to wait for the next Democratic administration, most likely headed by Hillary Rodham Clinton, an ace up the sleeve of the Republican Party and the Democratic Leadership Council. -- Yoshie
* Critical Montages: <http://montages.blogspot.com/> * Monthly Review: <http://monthlyreview.org/> * Greens for Nader: <http://greensfornader.net/> * Bring Them Home Now! <http://www.bringthemhomenow.org/> * Calendars of Events in Columbus: <http://sif.org.ohio-state.edu/calendar.html>, <http://www.freepress.org/calendar.php>, & <http://www.cpanews.org/> * Student International Forum: <http://sif.org.ohio-state.edu/> * Committee for Justice in Palestine: <http://www.osudivest.org/> * Al-Awda-Ohio: <http://groups.yahoo.com/group/Al-Awda-Ohio> * Solidarity: <http://www.solidarity-us.org/>