Sunday, August 21, 2005

Complexity of ED

Once again ER Shipp has turned her attention to the issue of eminent domain. Writing in yesterday's Daily News she revisits the controversy surrounding the taking of property in order to make way for Central Park in the 19th century. The park, part of a "grand gentrification" scheme, led to the destruction of a number of thriving "settlements", one being a predominately African-American enclave called Seneca Village.

At the time the park was meant to be used by the "swells" and it only gradually transformed itself into "one of the most democratic havens in our midst". Clearly, the construction of the park was one of those grand ideas that today helps give this city the special grandeur that it enjoys today. The disappearance of Seneca Village has become just a historical footnote.

The way to look at this, however, is through the legal adage: "good cases make bad law". The citing of a couple of compelling examples of the salutary use of eminent domain should not be used to memorialize the policy. At the same time, they should alert us to the fact that we should also be cautious about creating absolute legal prohibitions.

In essence, we need to approach the crafting of eminent domain policy with an eye towards nuance. We should also do so, however, with a strong regard for private property rights. In fact this regard should be seen as a presumption and, when taking is seen as necessary, a maximum notion of compensation should be a concomitant (one that even sees the existing owners as co-developers).