Eminent Domain: Haley Barbour, Robert Moses and Sandra J. O’Connor

There’s not much left to say, at least conventionally, about the recent political back-and-forth concerning eminent domain in Mississippi. Which is why I’m bringing in New York City’s “master builder” Robert Moses and retired (and missed) U.S. Supreme Court Justice Sandra J. O’Connor.

In 1995, the U.S.  Supreme Court’s 5-4 decision in Kelo v. City of New London affirmed the power of government, under the Fifth Amendment’s Takings Clause, to use eminent domain to take private property for private development, when the “public purpose” of that taking is economic development. The question of what constitutes economic development is left to the broad discretion of the government doing the taking.

The decision was and remains controversial. Many states, in the wake of Kelo, enacted legislation to make that sort of taking more deliberate and difficult. Mississippi was one of the last of the states to take on the issue. This past legislative session, politicians from both sides of the aisle joined forces to pass restrictions on the use of eminent domain. Governor Barbour, though a staunch conservative, vetoed the legislation. The legislation, he and many others believe, would be fatal to big-project, big-property developments like Toyota. The legislature could not override the veto.

Now about Robert Moses and New York City.

For decades in the mid-20th century, Robert Moses headed many of the public authorities in New York City: bridges, roads, public housing, etc. But those titles don’t really tell the story. The story is that Robert Moses, for better and worse, is the master builder of modern New York. Robert Caro, who wrote the definitive biography The Power Broker: Robert Moses and the Fall of New York, says plainly: “He was the greatest builder in the history of America, perhaps the greatest builder in the history of the world.”

It’s hard to argue with that assessment. Here’s a brief summary from an article by Caro:

He built every one of the expressways that cut across the city, carrying its people and its commerce — fifteen expressways, plus the West Side Highway and the Harlem River Drive…

He built every one of the parkways that, within the city’s borders, stretch eastward toward the counties of Long Island, and he built every one of the parkways that, beyond those borders, run far out into those counties, thereby shaping them as well as the city. There are eleven of those parkways in all…In New York City and its suburbs, he built a total of six hundred and twenty-seven miles of expressways and parkways…

He created — or re-created, shaping to his philosophy of recreation — every park in the city, adding twenty thousand acres of parkland (and six hundred and fifty-eight playgrounds) in a city that had been starved for parks and playgrounds…And for the use of the city’s residents he created, outside the city’s borders, on Long Island, another forty thousand acres of parks, including not only Jones Beach, which may be the world’s greatest oceanfront park and bathing beach, but other huge parks and beaches — Sunken Meadow, Hither Hills, Montauk Point, Bethpage, Belmont Lake, Hempstead Lake, and eight others.

And bridges, roads, parks, and beaches are only a part of the mark that Robert Moses left on New York. During the time in which he controlled — controlled absolutely — the New York City Housing Authority, the authority built 1,082 apartment houses, containing 148,000 apartments which housed 555,000 people: more people than, at the time, lived in Minneapolis.

But all this was not without human cost. Neighborhoods, even whole sections of the city, were destroyed physically or socially (and some have still not recovered, decades later). According to Caro’s tally:

To build his expressways, he evicted from their homes two hundred and fifty thousand persons, in the process ripping out the centers of a score of neighborhoods, many of them friendly, vibrant communities that had made the city a home to its people. To build his non-highway public works, he evicted perhaps two hundred and fifty thousand more…

The point of mentioning Robert Moses is not to say that big development at the cost of private property and neighborhoods is good or bad. The point is that unless the power is balanced, scrutinized and limited, the consequences can be as devastating as they are beneficial.

That was the opinion of Supreme Court Justice O’Connor in the Kelo case. The most conservative Justices on the Court, Antonin Scalia and Clarence Thomas, dissented from the majority opinion by Justice Stevens. Justice O’Connor was often called a swing vote, with opinions that were less predictable. She was no liberal, and she exercised a kind of real world law, thorough, considerate and pragmatic. In her Kelo dissent, she foresaw troubling consequences for the unlimited eminent domain powers the Court had allowed:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.”

Robert Moses. Sandra Day O’Connor. Antonin Scalia. James Madison. Private property rights. Economic development. When you are trying to choose among competing and maybe incompatible interests, trying to balance political principles against pragmatism, and most of all, trying to meet the economic challenges facing Mississippi in these difficult times, there’s no easy answer.

L.Q.C. Lamar

Lucius Quintus Cincinnatus Lamar (1825-1893) needs more of our love and attention. Which is why this ongoing report on Mississippi’s present and future begins with one of the greatest figures of its past.

Lucius Lamar has not been ignored; it’s just that his recognition seems to me both inconstant and inadequate.

Yes, he is one of the profiles in John F. Kennedy’s Profiles in Courage. But hardly anyone reads that anymore. Lamar is honored by having not one but three counties named after him, in Mississippi, Alabama and Georgia. In the 1970s, a group of Southern leaders formed the L.Q.C. Lamar Society as a way to advance the progressive agenda of what was then called the New South (the Society, now passed, remains a significant development). Lamar House, his long-time home in Oxford,  is now a museum about his life. Dedicated in 2008, this restoration came only after the house was rescued from near-fatal disrepair.

The outline of Lamar’s life is well covered. A young Georgia lawyer, he followed his father-in-law to Mississippi. He was elected to the U.S. House in 1856, but resigned a few short years later, following the founding of the Confederacy. Lamar in fact drafted the Mississippi Ordinance of Secession. After the Civil War, among other things, he directed the University of Mississippi School of Law. Lamar then returned to Congress, elected to the House (1873-1877), and then to the U.S. Senate (1877-1885). Beyond the Senate he continued his distinguished career in public service. He served as U.S. Secretary of the Interior from 1885 to 1888, and was then appointed to the U.S. Supreme Court (1888-1893). To date, he is the only Mississippian to sit on the Court.

The least-recognized achievement of his career came during his time at the University of Mississipppi School of Law. Most conventional histories of American legal education give Christopher C. Langdell at Harvard Law School credit for  introducing what is called the “case method” of law school study. In a nutshell, instead of being asked to merely memorize law, students are made to take apart significant cases piece by piece. There is not a law student who does not have a casebook stuffed with underlines, highlights and scribbled marginal notes. All because of Christopher Langdell at Harvard.

Except for this: It is all because of Lucius Lamar at the University of Mississippi. As the current Dean of the School of Law explains:

Long before Christopher Columbus Langdell employed the case method for studying law at Harvard Law School, L.Q.C. Lamar, later an associate justice on the United States Supreme Court, introduced the case method at The University of Mississippi School of Law.

If invention of the case method is the least recognized historical item about Lamar, the most celebrated is The Speech.

The Speech is the eulogy that Lamar delivered upon the death of U.S. Senator Charles Sumner in 1874. It is the main reason that Lamar is included in Profiles in Courage. It is the high point of every biography.

Sumner was a Senator from Massachusetts, and as a politician had been a vocal abolitionist and advocate for racial equality. Before and during the Civil War, he was no friend to the South. Yet by the time he died, he was convinced that reconciliation was the future of a truly united country.

At the time of Sumner’s death, Lamar had only recently returned to Congress. Lamar shared Sumner’s sense that reconciliation was the best and only course, that punishment on the one hand and generations of resentment on the other could never be any good. (Lamar’s position was not universally popular back in Mississippi, but much to the state’s credit, it went on to elect Lamar to the Senate.)

For a speech so celebrated, the fame of Lamar’s eulogy of Sumner is based on its spirit and the national response to it, rather than on its every word. The verbatim speech is dense and full of what some characterize as typical nineteenth century rhetoric. But given Lamar’s skills as an orator, it must have been really something to hear.

That’s certainly what those who heard it that day, April 28, 1874, thought. Congressmen on both sides of the aisle wept openly. Newspapers across the country, North and South, were effusive, even giddy, in their praise:

The Boston Daily Advertiser: There is no sentence in Mr. Lamar’s speech that breathes of any motive inconsistent with chivalrous honor…Mr. Lamar s speech is the most significant and hopeful utterance that has been heard from the South since the war.

The Boston Herald: This extreme fire eater, whose admittance to Congress had been deemed dangerous, grasps the outstretched hand of the extreme abolitionist who was not spoiled by victory, and teaches us all a lesson in reconstruction.

The Boston Globe: We do not know of any parallel in history to a recognition like this. The appreciation, by a leader of the vanquished, so soon after our great civil strife, not only of the identity of interest between the two sections, but of the motives of the most determined assailant of slavery, is something to excite gratification and wonder….

The Savannah Advertiser-Republican: As Mr. Lamar is a Georgian born and bred, it affords us a pleasure to indorse every word, every line, and every sentiment of his effort. We adopt the language of our Georgian contemporary, and add our testimony to the eloquence, power and pathos of Col. Lamar s great speech.

The Richmond Enquirer: It was a bold, brave, eloquent appeal to the old fraternal feelings between the Northern and Southern people. . . .

The Louisville Courier-Journal: We point to Mr. Lamar’s speech with pride and confidence. It speaks for itself. It is a manly, earnest, and eloquent plea for reconciliation….It represented the feelings of the entire South, and nothing but a blind partisan bigotry will pretend to deny the fact.

The Cincinnati Commercial: The speech of the day, however, the one which evidently made the deepest impression and elicited the highest praises, was the one delivered by Mr. Lamar. . . . there were many who were moved to tears by the simple, manly appeal to their better nature. The speech will live, and will have a marked and beneficent effect in the future.

The Memphis Appeal: The South is proud of L. Q. C. Lamar. His name has shot across the sky like a blazing meteor. He is now the cynosure of all eyes. From one end of the Union to the other the press teems with praises of the brilliant Mississippian. All concur in the opinion that no finer oration has ever been pronounced over the grave of the dead than that which Col. Lamar delivered in commemorating the great career of Charles Sumner. It was a touching, graceful tribute, and has done more toward breaking down the barriers that have so long divided the Union than any event since the war.

As I said, the text of the speech is dense, and not easily or quickly quotable. But the closing portion is worth repeating, because it stands alongside any of the great American speeches given at any of the critical moments we have faced:

Bound to each other by a common constitution, destined to live together under a common government, forming unitedly but a single member of the great family of nations, shall we not now at last endeavor to grow toward each other once more in heart, as we are already indissolubly linked to each other in fortunes? Shall we not, over the honored remains of this great champion of human liberty, this feeling sympathizer with human sorrow, this earnest pleader for the exercise of human tenderness and charity, lay aside the concealments which serve only to perpetuate misunderstandings and distrust, and frankly confess that on both sides we most earnestly desire to be one ; one not merely in community of language and literature and traditions and country; but more, and better than all that, one also in feeling and in heart? . . .

I know well the sentiments of these, my Southern brothers, whose hearts are so infolded that the feeling of each is the feeling of all; and I see on both sides only the seeming of a constraint, which each apparently hesitates to dismiss. The South prostrate, exhausted, drained of her lifeblood, as well as of her material resources, yet still honorable and true accepts the bitter award of the bloody arbitrament without reservation, resolutely determined to abide the result with chivalrous fidelity; yet, as if struck dumb by the magnitude of her reverses, she suffers on in silence. The North, exultant in her triumph, and elated by success, still cherishes, as we are assured, a heart full of magnanimous emotions toward her disarmed and discomfited antagonist; and yet, as if mastered by some mysterious spell, silencing her better impulses, her words and acts are the words and acts of suspicion and distrust.

Would that the spirit of the illustrious dead whom we lament to-day could speak from the grave to both parties to this deplorable discord in tones which should reach each and every heart throughout this broad territory: “My countrymen! Know one another, and you will love one another.”

“My countrymen! Know one another, and you will love one another.” There is probably not a day that has passed in one hundred and thirty-five years, in Mississippi or anywhere else, when the words of this great Mississippian could not serve as a guidepost to a better future.