Back to the Bench, Andy


The Washington Post's "Bench Conference" blogger Andrew Cohen is sorely vexed by an "atrocious," "shrill" article on Kelo and eminent domain in Parade. Here's Cohen:

In some ways this hysteria isn't surprising given the reaction last year's big Supreme Court eminent domain ruling received from mainline journalists. The convention [sic] wisdom had it then (and has it now, unfortunately) that a group of judges had suddenly defiled the centuries-old notion that a man's home is his castle. The truth is much different. The Supreme Court in Kelo simply recognized that the State of Connecticut had made a series of legislative choices, spurred by aggressive lobbying from developers, that allowed local officials to take with just compensation private property and then turn the land over to private economic developers.

Likewise, the Ohio Supreme Court undertook a similiar analysis last month and came to a different conclusion: that state law restricted the ability of local officials to take private property for economic development. Two different states. Two different statutes. Two different results. Nothing outrageous or shocking or dismaying about that, right? [….] By whipping people into a frenzy of anger at judges and the big, bad "government," the Parade piece and others like it do a great disservice to people whose homes may be threatened by eminent domain. The fact is that the solution to eminent domain woes also can be found precisely where the problems lie– at the State House.

Here are three phrases that appear nowhere in Cohen's 500 words of tongue-clucking: Fifth Amendment. Public Use. Takings Clause. It's as though someone had penned a long screed on the battle over sectarian prayer in public schools without acknowledging the existence of the Establishment Clause, then puzzled over why practitioners of some minority religion were taking the issue to the courts rather than their local government. (Perhaps Cohen just assumes state legislatures get to define "public use." I wonder if he feels the same way about "equal protection.") And painful though I know it must be for a Post staffer to slum in the pages of Parade, had Cohen read the article closely, he might have noticed that it does in fact discuss how "more than two dozen states introduced or passed legislation and constitutional amendments to stop what critics call 'eminent domain abuse.'"

So to recap: When someone does a sympathetic profile of families disposessed by eminent domain, exercised on behalf of private business, that's hysterical editorializing masquerading as journalism. The loftier standards of the Post, on the other hand. are no bar to discussing a legal dispute in a way that defines one side's actual legal argument out of existence. Perhaps Cohen just doesn't want to acknowledge that the Constitution protects unseemly economic freedoms alongside nobler ideals like freedom of the press—let alone soil himself with a grubby debate about their scope. But that's a shabby excuse for pretending it isn't so. [Cross-posted @ NftL]