Post Date: April 17, 2006

The following op-ed by Professor David Barron, Eminent domain is dead! (Long live eminent domain!), appeared in The Boston Globe on April 16, 2006.

Last summer in Kelo v. City of New London, the Supreme Court upheld a redevelopment plan for New London, Conn., that involved seizing private homes to enable commercial development near a major pharmaceutical company. New London argued the plan would jump-start the stalled local economy, and the decision, a 5-to-4 vote, affirmed the government’s power under the Constitution to use eminent domain to take private property for economic development as long as just compensation is paid.

But while virtually every state, including Massachusetts, is considering legislation to curb Kelo, a closer look at the legislative response reveals a different story. As moving as the plight of holdouts like the Connecticut resident who was the lead plaintiff in Kelo may be, Americans have long been of two minds when it comes to property rights. On the one hand, there is the old notion that ownership is inviolable, a home is a castle, and the government has no business messing with private property. On the other hand, there is the equally old notion that no one is an island and that the value in any individual’s property is deeply interconnected with the health of the community as a whole. Eminent domain may be a power that people love to hate, but it’s also one that communities that are serious about planning are rightly reluctant to restrict-and one that should not have to be used only in poor and minority neighborhoods, where residents usually have the least amount of political influence.

As a legal matter, the Constitution says the government can only take private property for a ”public use,” but more than a century of precedent interprets that requirement to mean government may use eminent domain for a ”public purpose.” Just as government took private property to promote private railroads and mills a century ago, it has done so in recent decades to promote commercial building to revitalize urban areas, from the Inner Harbor in Baltimore to Lincoln Center in New York City.

New London’s effort to address its severe economic distress by using eminent domain for private waterfront development seemed well within bounds to the court’s majority, even though it involved taking homes in good repair. Nevertheless, the decision came as a shock to many unfamiliar with constitutional case law, generating a groundswell of opposition spanning the usual left-right divide.

Anything opposed by both the conservative Institute for Justice and the liberal NAACP would not seem long for this world, the authority Kelo upheld has thus far survived largely unscathed. As many as 50 anti-Kelo bills are pending in some states, and, at last count, 14 states have enacted laws against it. But to this point, only one has a new law that actually limits eminent domain to government-owned development projects, such as roads, schools, and airports. And that state is South Dakota-which has a legislature that is not big on nuance lately, having just banned abortions in all cases except to save the life of the mother.

The other anti-Kelo state statutes all have more bark than bite-and, interestingly enough, tend to allow exemptions for eminent domain aimed at redevelopment in blighted areas. For example, Alabama’s, the first to pass, provides that eminent domain can’t be used for economic development except ”on a finding of blight in any area covered by any redevelopment plan or urban renewal plan.” That means even a fine house in a ”bad” neighborhood may be taken as part of a broader redevelopment project.

Texas’s law contains strong pro-property rights rhetoric before providing that taking private property and handing it to private developers is just fine so long as the private benefit results incidentally from community development or urban renewal efforts aimed at improving ”blighted areas.” Another section permits eminent domain in connection with a pending stadium project for the Dallas Cowboys, while yet another allows it for constructing a museum.

Idaho, Kentucky, West Virginia, Utah, and Wisconsin have enacted similarly porous legislation. Indiana and Georgia arguably have somewhat stricter new laws, but they, too, exempt blighted properties, and Indiana’s law expressly permits takings for technology parks. Laws passed by Colorado, Delaware, and Ohio are even less aggressive, and Michigan has simply kicked the issue to voters by calling for a constitutional referendum. Thus, the Institute for Justice, which once seemed poised to win a clean sweep, now merely touts the fact that many states have ”in some way” responded to Kelo.

Of course, it’s only been one year. But the pending legislation is itself riddled with carve outs in which the very thing that supposedly must be stopped-using eminent domain to transfer property from one private person to another-is expressly permitted.

For its part, Congress has enacted one symbolic anti-Kelo bill, while another bill has passed the House that bans federal funds to states that do not bar the kind of takings Kelo permits. But the federal government is on the hook for lots of money to redevelop areas ravaged by Hurricane Katrina, and eminent domain involving transfers to private developers is likely to be a key feature. What’s more, many real estate developers, known to make political contributions, strongly defend the decision. It’s unlikely that federal legislation restricting eminent domain will go too far.

But it’s more than the developer lobby that’s slowing the backlash. Large numbers of communities in America are in need of revitalization while others are eager to maintain themselves as lively, attractive places. Eminent domain is one tool for improving the conditions of neighborhoods. One of our own area’s most successful community development organizations, the Dudley Street Neighborhood Initiative, for example, lobbied to be given the power of eminent domain in the 1980s so it could revive a long-depressed neighborhood in Roxbury. By taking privately owned abandoned property, and developing housing in its place, the private community group was able to do just that.

But while the real story of the Kelo backlash should be welcome news for those concerned about the future of cities, the power it upholds can be abused. The potential for corruption is great, and, as Justice Clarence Thomas powerfully argued in his Kelo dissent, poor and minority communities may be hurt by redevelopment plans that claim to help them. The federally subsidized urban renewal programs of the 1950s cleared many close-knit neighborhoods in order to promote private development. The dubious results, combined with the massive displacement that resulted, led many to refer to urban renewal derisively as ”Negro removal.”

The fact that many anti-Kelo bills restrict the use of eminent domain to blighted areas should therefore trouble even the decision’s supporters. ”Blight” is often code for black and poor. One of Kelo’s striking features was that it permitted a city to use eminent domain even without showing that the targeted neighborhood was blighted, so long as it implemented a real plan for redevelopment. In that way, the court indicated cities should not have to do redevelopment on the backs of poor and minority residents in order to comply with the Constitution. There’s nothing to cheer in a legislative reaction that would now limit local governments to doing just that.

Rather than banning eminent domain for economic development, or restricting it to ”bad” neighborhoods, we should focus on reforms that would ensure the communities in which it is so often used have a say in the planning process. That means ensuring those who are least likely to have a voice in economic redevelopment get one.

Shifting decision-making power over eminent domain from unaccountable redevelopment authorities to local city councils is a start. So, too, is requiring community development corporations to be part of the planning process and to make that process meaningful. But prohibiting our cities and towns-and the poor and minority residents within them-from reaping the benefits of a powerful development tool that can attract new jobs and improve deteriorating conditions makes little sense.

Thankfully, the Supreme Court has enabled us to determine how useful a tool eminent domain can be. Equally important, the opposition Kelo stirred has not yet resulted in the overreaction that once seemed inevitable.

David Barron is a professor at Harvard Law School, where he specializes in state and local government law and constitutional law.