Why The New York Times ?s Eminent Domain

Elite newspapers and liberal activists embrace the Kelo decision at their long-term peril.

On September 24, 2001, as New York firefighters were still picking their comrades' body parts out of the World Trade Center wreckage, New York Times Co. Vice Chairman and Senior Vice President Michael Golden announced that the Gray Lady was ready to do its part in the healing.

"We believe there could not be a greater contribution," Golden told a clutch of city officials and journalists, "than to have the opportunity to start construction of the first major icon building in New York City after the tragic events of Sept. 11." Bruce Ratner, president of the real estate development company working with the Times on its proposed new Eighth Avenue headquarters, called the project a "very important testament to our values, culture and democratic ideals."

Those "values" and "democratic ideals" included using eminent domain to forcibly evict 55 businesses--including a trade school, a student housing unit, a Donna Karan outlet, and several mom-and-pop stores--against their will, under the legal cover of erasing "blight," in order to clear ground for a 52-story skyscraper. The Times and Ratner, who never bothered making an offer to the property owners, bought the Port Authority-adjacent property at a steep discount ($85 million) from a state agency that seized the 11 buildings on it; should legal settlements with the original tenants exceed that amount, taxpayers will have to make up the difference. On top of that gift, the city and state offered the Times $26 million in tax breaks for the project, and Ratner even lobbied to receive $400 million worth of U.S. Treasury-backed Liberty Bonds--instruments created by Congress to help rebuild Lower Manhattan. Which is four miles away.

If you think the Times' editorial division would be outraged to see the business side trampling the Little Guy, you probably haven't been following the political evolution of the nation's leading newspapers. For decades now, the country's elite dailies and those papers that emulate them have deliberately eschewed individual stories in favor of broader "trend" pieces (especially when it comes to crime); routinely endorsed government action to cure society's ills; and mocked the "tabloid" populism of the more right-leaning media organizations that dwell on single cases of outrage. Like the activist who loves The People but despises every actual person he meets, the Times' editorial page takes liberal stands when the issue is safely abstract--but when it comes to the paper's profits and political battles, the Little Guy can get bent.

Nowhere was this anti-populist, ends-justify-the-means approach on more naked display than after the Supreme Court's 5-to-4 ruling in Kelo v. City of New London. That June 23 decision upheld governments' broad leeway to use eminent domain to transfer property from one private owner to a richer one--in that particular case, from Connecticut homeowners to an upscale real estate development. While much of the country howled in protest at the fact that, in the words of dissenting Justice Sandra Day O'Connor, "nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," the Times, in an editorial entitled "The Limits of Property Rights," let out a lusty cheer. Kelo, the paper declared, is "a welcome vindication of cities' ability to act in the public interest" and "a setback to the 'property rights' movement, which is trying to block government from imposing reasonable zoning and environmental regulations."

Even more interesting than the scare quotes around "property rights" (imagine replacing the word "property" with "civil") was that the Times--normally the benchmark upon which other newspapers measure and model themselves--was almost completely alone in its judgment. The Richmond Times-Dispatch, for example, headlined its editorial "Court-Endorsed Theft." The Hartford Courant went with "A Sad Day for Property Rights," the St. Petersburg Times chose "Eminent Mistake," and the Chattanooga Times Free Press thundered: "Your Home, Freedom Attacked." Even The Boston Globe, owned by The New York Times, condemned the ruling. One of the few other newspapers to endorse the decision, and then grudgingly, was the other national daily that sees itself as a crucial player in the country's professional political debate: The Washington Post.

"The vast majority of newspapers have editorialized against it," says Scott Bullock, senior attorney at the Institute for Justice, who unsuccessfully litigated Kelo in front of the Supreme Court. "The only real exceptions were the elite-opinion papers."

As the Post and the Times cheered on the government's ability to break a few individual eggs in order to make a more perfect public-interest omelette, Kelo was prompting an ideologically diverse backlash against eminent domain abuse. The week after the decision, far-left California Democrat Rep. Maxine Waters joined far-right Texas Republican Rep. Tom DeLay in supporting an amendment to an appropriations bill barring federal Community Block Grant funds for any locale that doesn't prohibit eminent domain seizures for private development. It passed 231 to 189, and a similar bipartisan bill has been introduced in the Senate.

Alabama successfully prohibited such transfers in nonblighted areas on July 27 (joining eight other states with similar laws); Texas is trying to get a ban on the November ballot, and several other state legislatures are contemplating quick action in the wake of Kelo. Supporting these efforts is a politically broad variety of groups, from the National Association for the Advancement of Colored People to RightMarch.com. Outrage at Kelo united columnists Molly Ivins and George Will, fire breathers Rush Limbaugh and Ralph Nader. "The only people who supported the decision," Bullock says, "were cities who want the tax dollars, some developers who want to get their projects approved, and then a couple of random academics."

But there was another group of eminent domain supporters: those liberal activists, who, like The New York Times, saw Kelo as a Trojan horse for rapacious capitalists and sneaky Republicans. "Eminent domain is the partial-birth abortion of property rights--a practice so evidently heinous that people who might otherwise not be sympathetic to the cause are drawn in," warned Alyssa Katz on the Web site of The American Prospect, a magazine dedicated to "giving progressive political leaders the weapons they need for battle."

The Prospect's Matthew Yglesias also saw the case as a trick. "It speaks well of the intelligence of the libertarian legal community that when they try and establish precedents that will make it much harder to regulate large corporations and wealthy individuals in the public interest that…they pick cases like [Gonzales v.] Raich and Kelo, where liberal egalitarians may sympathize with plaintiffs ostensibly besieged by Big Government….[But they] have an extreme and pernicious view of property rights that, if implemented in full, would have disastrous consequences for the country."

In his 1965 essay "On Evasive Thinking," then-dissident Vaclav Havel identified the dangers of such hyperactive contextualizing by heaping criticism on a Czech newspaper columnist who reacted to two cases of pedestrians being killed by falling window ledges by waxing at length about the rosy future prospects made possible by the Communist Party. "The so-called prospects of mankind are nothing but an empty platitude," Havel warned, "if they distract us from our particular worry about who might be killed by a third window ledge."

Both Prospect-style liberals and the nation's great newspapers have been falling off the ledge of popularity for some time now. If they don't relearn the ability to locate outrage at individual cases of injustice, and cease subsuming them within the "bigger picture" of the struggle against evil Republicanism, it's hard to imagine that trend being reversed.

"The malignant idea that governmental assertions about collective needs outweighed fundamental human rights was supposed to have died with the Soviet Union," the Richmond Times-Dispatch editorialized, in what would make a fine epitaph for The New York Times. "On Thursday the Court proved that it not only lives, but thrives."