Eminent domain is in the news again because of ever-controversial presidential candidate Donald Trump's remarks that the condemnation of property for transfer to private developers is “a wonderful thing" and that "nobody knows [eminent domain] better than I do" (one imagines Richard Epstein dusting off boxing gloves).

Plenty of other commentators, including my husband Ilya Somin and Reason magazine's Matt Welch, have ably pointed to many problems with Trump's most recent statements. But one reason why eminent domain is often less than wonderful is its sordid racial history and continued disproportionate effects on racial and ethnic minorities. A bit more than a year ago, the U.S. Commission on  Civil Rights published a report, The Civil Rights Implications of Eminent Domain Abuse, that explores these very important topics.

The tone of the report is deliberately modest because much of the case for and against the kinds of takings authorized by Kelo v. New London turns on factors outside of the Civil Rights Commission's traditional purview. But to give readers a sense of the issues at stake, I quote from Commissioner Gail Heriot's* statement:

 "I... found this briefing topic worthy of study because eminent domain’s racially adverse effect seems counterintuitive to many people.[1] Conventional wisdom has it that robust judicial protections of property rights redound only to the benefit of wealthy and privileged groups, and that ever-more-powerful government will always be the friend of the poor and historically discriminated against.[2] The story told in this briefing report counsels otherwise.

In the nineteenth century, protecting the property rights of freed slaves was seen as a crucial means of securing meaningful freedom for them. Professor David Beito’s testimony quoted Frederick Douglass on the subject: “We hold the civil government to be solemnly bound to protect the weak against the strong, the oppressed against the oppressor, the few against the many, and to secure the humblest subject in the full possession of his rights of person and of property.”[1] (Italics added.) The framers of the Fourteenth Amendment took similar views. They worried that Southern state and local governments would threaten the property rights of freed slaves and those whites who supported the Union and therefore understood private property to be one of the core rights to be protected by the Amendment.[2]

Widespread use of eminent domain did not appear as a major challenge to traditional conceptions of property rights for another several decades, when early twentieth century progressives became interested in strategies for improving American cities. To put the point gently, most did not share the racial sensibilities and multiculturalist ideals of twenty-first century progressives. Instead, these advocates sought to make cities more “rational” by displacing members of undesirable racial and ethnic groups who they believed impeded “hygienic” or “scientific” urban development. The term “blight,” which Progressive intellectuals borrowed from botany, in effect likened the spread of such people to invasive plant diseases.[3] The 1954 landmark Berman v. Parker decision, which authorized a broad conception of “public use,” reflected decades of sustained efforts by these advocates to reshape the jurisprudence of eminent domain to achieve their goals more easily.[4] The neighborhood of southwest Washington, D.C., in which the Berman condemnations took place was also overwhelmingly African-American.[5]

Advocates for the prominent redevelopment projects of mid-century were often quite up front about their intentions to use urban renewal projects for racially discriminatory ends. As quoted in the body of this report, displacement of African-Americans and urban renewal projects were so intertwined that urban renewal was referred to as “Negro removal.”[6] In Chicago in the 1940s, protesters claimed that the “Lake Meadows” re-development project on the near Southside was “Negro clearance” rather than “slum clearance” and said, “If it is a slum clearance program, then let’s make it that and start where the slums are.” Although their complaints delayed the project, these efforts ultimately did not stop the clearance of the area.[7] In New York, a leading proponent of the 1940s “Stuyvesant Town” redevelopment project, Metropolitan Life Insurance Chairman Frederick Ecker, infamously defended the company’s decision to deny admission to blacks by declaring that “blacks and whites just don't mix.”[8] One study reports that, between 1949 and 1973, government officials executed 2,532 projects in 992 cities, displacing one million people, two-thirds of whom were African American. [9] Eminent domain use displaced African Americans five times more often than their representation in the nation’s population.[10]   

Fortunately, aggressively racial motivations for takings appear less common now than they were a few decades ago. But it remains at best unclear whether redevelopment advocates have fully acknowledged or grappled with some of the more unsavory facets of the intellectual history of “blight” and of Berman v. Parker, which remain integral parts of contemporary takings law. Indeed, the latter was re-affirmed in, and largely drove the outcome of, the more recent Kelo v. New London.[11]"

Read the rest of the report here.

 

[1] Frederick Douglass, Comments on Gerrit Smith’s Address, in Frederick Douglass: Selected Speeches and Writings (Philip S. Foner and Yuval Taylor, eds. 2000).

[2] See written testimony of Professor Ilya Somin at 27.

[3] See Wendell Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Use of Eminent Domain, 20 Yale L. & Pol’y Rev. 1, 7-8 (2003): “To secure political and judicial approval for their efforts, renewal advocates created a new language of urban decline: a discourse of blight. Blight, renewal proponents argued, was a disease that threatened to turn healthy areas into slums. A vague, amorphous term, blight was a rhetorical device that enabled renewal advocates to reorganize property ownership by declaring certain real estate dangerous to the future of the city. To make the case for renewal programs, advocates contrasted the existing, deteriorated state of urban areas with the modern, efficient city that would replace them. Urban revitalization required the condemnation of blighted properties and the transfer of this real estate to developers who would use it more productively….”

Also: “The role of blight terminology in restricting racial mobility has also been under-appreciated by legal scholars. Blight was a facially neutral term infused with racial and ethnic prejudice. While it purportedly assessed the state of urban infrastructure, blight was often used to describe the negative impact of certain residents on city neighborhoods. This ‘scientific’ method of understanding urban decline was used to justify the removal of blacks and other minorities from certain parts of the city. By selecting racially changing neighborhoods as blighted areas and designating them for redevelopment, the urban renewal program enabled institutional and political elites to relocate minority populations and entrench racial segregation.” Id. at 18

Also: “In periods of migration, these areas were ‘invaded’ by ethnic and racial minorities in search of affordable housing. This use of medical terminology by the Chicago school made its analysis appear objective and scientific, but it also reflected the general prejudices of society regarding racial minorities, particularly blacks. In his discussion of Chicago, Burgess noted the ‘disturbances of metabolism caused by an excessive increase [in population] such as those which followed the great influx of southern Negroes’ into the city after World War I. These waves of people caused a ‘speeding up of the junking process in the area of deterioration.’ Another study, which acknowledged that many areas occupied by blacks had other unattractive features, concluded that ‘certain racial and national groups … cause a greater physical deterioration of property than groups higher in the social and economic scale.’ Blight, therefore, may have been a naturally occurring process, but racial minorities were central to the Chicago school’s understanding of urban change.” Id.

[4]Id. at 1.

[5] Id. at 41.

[6] Report at 5, citing Brief for Nat’l Ass’n for the Advancement of Colored People et al. as Amici Curiae Supporting Petitioners at 7, in Kelo v. New London, 545 U.S. 469 (2005) (No. 04-108), available at http://www.ij.org/ images/pdf_folder/private_property/kelo/naacp02.pdf.

[7] Housing Project Hangs Fire: Charges ‘Clearance' of Negroes is Aim, Chi. Defender, May 7, 1949, at 4 (quoted in Pritchett, supra note 6, at 35).               

[8] Quoted in Pritchett, supra note 8, at 33.

[9] See Mindy Thompson Fullilove, Eminent Domain and African Americans:  What is the Price of the Commons? (2007).

[10] Id. at 2.

[11] 545 U.S. 469 (2005).

 

*I work as Gail Heriot's special assistant and counsel at the Commission. The views expressed in this post are not necessarily those of Gail Heriot, the Commission, or anyone other than me.