Living in the World/Tales from the ECD
China, Clearfield County and Rights

[As the Summer Olympics wind through the second week in China, I wanted to share an article I wrote that first appeared in SGM Magazine. It has a reference point when Chinese were in Clearfield County to examine how open pit mining was conducted in the US. It also involves a discussion of the changing attitude toward “economic rights” in China and the US. That is not to say one should prefer the PRC over the USA. It is obvious to all who have watched the run up to the Games that there is much wanting and a distance unmeasureable to go in the matter of “human rights” in China. Yet, we see the “times are a changing”’ with respect to “economic rights” both in China and the US.]

In November and December of 1978, Deng Xiaoping eased Communist party and State controls into his hands. Quite a feat for one who was twice exiled by Mao.Deng was an economic reformer. He believed that communism did not mean poverty. One of his greatest reforms was the Special Economic Zone [SEZ]. Much of the growth of China today is based on the SEZ and the partnership forged between free enterprise and the Communist Party. In 1984, Deng described the SEZ as:

a medium for introducing technology, management and knowledge…a window for our foreign policy…and to import foreign technology, obtain knowledge and learn management.

The success of Chinese economic reform can be seen by all in the big box stores in the USA. Many of the goods sold are marked “Made in China” which was unheard of ten year ago.

But, before the onslaught of Chinese consumer goods into the USA, Clearfield County came face to face with the economic reforms of the People’s Republic of China [PRC]. In the early 1980s, the PRC sent a delegation of mining engineers to the US to investigate mining technology.

Their first stop was Clearfield County, Pennsylvania, for good reason. According to Geologist C.H. Chance, as reported in The History of Clearfield County by Lewis Cass Aldrich published in 1887,Clearfield County is divided into three great coal basins separated by two anticlinal axes. The county sits on one of the largest deposits of bituminous coal in the Commonwealth. And, in the 1980s large amounts of coal were being mined by the surface mining method. The Chinese delegation wanted to investigate the types of machinery used in removing coal by the surface mining method.

During the one and one-half days they were in central Pennsylvania they crawled all over the bull dozers, rock trucks and loaders typical of surface mining. They took plenty of notes and pictures. The group consisted of 30 men…18 engineers, 4 interpreters and 8 “pilots”. The later were actually agents of the PRC accompanying the others to ensure the others returned to China at the completion of the three week visit.

At a banquet honoring the Chinese visit to Clearfield County, I sat with six of the visitors. When the conversation turned to what I did, I responded that I was a lawyer. The six looked at each other and after a long silence, one of the “pilots” responded. He spoke directly to me and said: “We do not need lawyers in our country. The government takes care of us.” Another period of silence ensued. I finally responded, “I see.” The conversation resumed without any reference to “rights talk”.

My how times have changed. Because of China’s burgeoning economy and international commerce, the PRC has developed a commercial legal system. This does not included a legal system protecting personal, property, civil or political rights of individuals. After all, it was the economic reformed Deng who turned the troops loose on the students in Tiananmen Square in 1989. But, even that is changing. A new brand of legal activists, trained in Chinese law schools, is pushing the envelope on public interest and human rights issues. In Chinese courts they have raised issues involving illegal land grabs, freedom of press and illegal taxation. Such actions, like Chinese goods in Walmart, were unheard of ten years ago.

The Communist Party is not yielding ground easily, however. Trudy Rubin reporting from Beijing, tells of Chen Guangcheng, a blind peasant lawyer, who tried to bring a class action suit challenging forced abortion and sterilization in Linyi. He was seized by the PRC and is being held in an undisclosed location. The Chinese media is forbidden to mention his case. Nevertheless, the New China with its presence on the world stage and the coming 2008 Summer Olympics, is clearly emboldening lawyers to push for peaceful internal political change through the courts.

Wang Xixin, associate dean of Peking University Law School has even created the China Center for Public Participation and Support. One of their key projects is to help farmers assert their legal rights to comment on draft legislation affecting them and challenge expropriation of their land by the government. All in all, strides are being made in a communist ruled country to free folks from the tyranny of the state involving the property rights of the people.

At the time of these encouraging changes, the USA seems to be moving in the other direction. While most conservatives were roiling about the two Ten Commandment cases in the last term of the US Supreme Court [USSC], Kelo v. City of New Haven, flew under their radar. In Kelo, the USSC approved an eminent domain taking by the City of New Haven, CN, not based on:

blight in the Fort Trumball area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation..

The city used a state statute authorizing “eminent domain to promote economic development.”

Kelo argued that economic development does not qualify as a “public use” under the explicit language of the 5th Amendment of the US Constitution. The USSC agreed with taking statute:

There is, moreover, no principled way of distinguishing economic development from other public purposes that we have recognized…Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.

It appears that the PRC and USA are moving in two different directions. While we are a nation of laws not men, the US Constitution is being molded like a wax nose. As Justice Thomas points out in his dissent, the Constitution is being stretched to the breaking point in justifying economic development as “public use”:

Public utility, public interest, common benefit, general advantage or convenience…we are afloat without any certain principle to guide us.

The USSC has opened the door to any government action based on “general public economic good” to condemn private property. Isn’t that what the public interest lawyers in China are trying to curtail? Practices by a totalitarian regime are being adopted by the USSC. We are witnessing quite a role reversal. If you live in an economically depressed area, watch your perfectly fine home or your neighbor’s home may be condemned so a Wal-Mart can be erected to sell Chinese goods. After all, it will bring commerce and jobs to the area. Economic development is a constitutional public use.

God bless those brave Chinese who want to obtain and keep personal, political, property and human rights. God help us here in the USA and the Eastern Continental Divide as our courts continue to limit our rights as a constitutional principle. If you live in a state where a Kelo result is possible, call you state legislator. And if you live in a state where it is not, keep it that way!