On Kelo v. New London from New London

Rob and Rick have a great thread going that focuses very sharply on the question of how we should come out on this case from the perspective of Catholic legal theory -- which is what we're all about here at MOJ. I'm no constitutional scholar or expert on takings, but I've been engaged by this case ever since it developed, because I grew up in New London, and still spend a lot of time there with family. So I'm a bit less theoretical and legalistic about this case than I am about most. I knew the old "Fort" neighborhood well, and had friends and relations who lived there. I've also followed the fortunes of New London redevelopment and the fate of the old neighborhood over the years.

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). It was at the lower end of the economic scale when I knew it -- mostly in the 50s and 60s -- with its denizens working mostly in nearby factories, warehouses and military bases. By the late 60s that employment was already drying up, but the Fort remained an isolated community of older Italians and Irish, surrounded by neighborhoods victimized by the white flight of the era and populated by very poor African-Americans and, later, Hispanics. As its population continued to age, the neighborhood literally withered with abandoned and boarded up houses becoming more and more common. The adjacent post-industrial area had become a typical brownfield wasteland. The Fort was one of hundreds (or thousands) of once thriving communities bound together by ties of ethnicity, religion (overwhelmingly Catholic) and class. It was the kind of place that striving second and third generation Italian-Americans sought to escape , but there was something real about those places -- they meant something in a way that suburban neighborhoods rarely do. I don't want to get sentimental about a neighborhood that could be amazingly narrow-minded and harsh, but did represent a community that had value and that we have lost. But enough sentimentality.

Similar eighborhoods in New London were destroyed not just by white flight and deindustrialization, but by the brutal "redevelopment" efforts of the 60s -- like Robert Moses' eviscerating of the Bronx, the attempt to destroy Fells Point in Baltimore and so on (the Fort was spared that). Talk about takings! But when we evaluate government takings for purposes of redevelopment, I don't worry so much about the property rights question. I don't get as emotional about government interference with private property as my friends on the right.  While I'm not any fan of government expropriation (hands off my Mini-McMansion on the Main Line, buddy!), I do get quite emotional about the destruction of communities in the name of economic development. That sort of reason raises all sorts of Catholic legal theory concerns: destruction of a subsidiary community (a neighborhood); a bureaucratic, rationalistic, technology-driven conception of the common good; a progressivist ideology that devalues human rootedness in community and tradition. So, for me, the problem with takings for the "public" purpose of either redeveloping public infrastructure or promoting  private economic development for public benefit is less (or not just) a problem of interfering with property rights than destruction of community.

So -- do I think the Court got it wrong in Kelo? On balance (and perhaps surprisingly), no. 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. The economic development that did take place was certainly more successful than the disasters of the 60s, and has generated revenues that helped create the possibility of rebuilding community in the New London. (I should note, of course, that there is debate about how much the benefits of the economic development have benefited the citizens of New  London - but it's the principle I'm trying to develop here.)

Is what I've suggested here a "legal" argument? Not in comparison to the well-worn groove of the takings argument, which pits the right in private property against the public interest in the taking. I'm proposing what the question might be under Catholic legal theory: is the taking constructive or destructive of community? I guess I'm proposing that as an alternative to Rick's reading of Catholic legal theory as intensifying the property interest by incorporating it within Catholic conceptions of human dignity. I'm not sure I disagree with Rick about that argument - I guess I regard it as incomplete when used in isolation.

-Mark