Eminent Domain Threatens Property of Poor and Minorities

It has been two years since the U.S. Supreme Court issued its landmark property rights decision in Kelo v. City of New London. It remains one of the most controversial and unpopular decisions in the history of the Court because it basically stripped away the Fifth Amendment’s protection of private property from government abuse of its power of eminent domain.

In Kelo the Supreme Court redefined the meaning of the Fifth Amendment protection against the government seizure of private property. Instead of limiting the use of the government’s power of eminent domain to specific “public use” needs the Court expanded the meaning of “public use” to justify the taking of private property for any purpose that results in a public benefit. This includes condemning homes family businesses and churches in favor of office buildings hotels and malls if the results are more jobs or higher tax revenues.

According to Andrew Napolitano Senior Judicial Analyst for the Fox News Channel the Fifth Amendment requirement for “public use” no longer exists. The Kelo decision completely obliterates “public use” and expands “public benefit” to allow the government to take personal property in order to sell it to a private entity because it will allow the government to benefit from more tax revenue.

The immediate public reaction was one of disbelief and outrage. Polls taken immediately following the Court’s decision showed the public disapproval rate ranging from 80 to over 90 percent. This prompted state legislators nationwide to introduce legislation to prohibit state and local governments from taking private property and turning it over to private commercial developers.

Even though Alabama was the first of 41 states to pass legislation to protect property owners from government seizure of property the state Legislature has failed to allow a vote on a much stronger property protection amendment in the last two legislative sessions. Alabama like most other states has still left some property owners at risk.

In a dissenting opinion opposing the majority on Kelo former Associate Justice Sandra Day O’Connor noted that lower income property owners would be the ones most often victimized by government seizure of their property. She wrote "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."

Justice Clarence Thomas also opposed the majority’s decision. In his dissent he wrote "Allowing the government to take property solely for public purposes is bad enough but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.”

The predictions of Justice O’Connor and Justice Thomas have been validated by a June 2007 study published by the Institute for Justice entitled Victimizing the Vulnerable: The Demographics of Eminent Domain Abuse.

According to this report “… more residents in areas targeted by eminent domain for private development as compared to those in surrounding communities are ethnic or racial minorities have completed significantly less education live on significantly less income and live at or below the federal poverty line.”

An earlier study by Dr. Mindy Fillilove was released by the Institute for Justice in February 2007. Eminent Domain & African-Americans: What is the Price of the Commons? focuses specifically on the effects of eminent domain abuse on African-American communities from 1949 to 1973 during which time eminent domain was used to implement urban renewal projects. There were 2532 projects carried out in 992 cities which resulted in the displacement of one million people. Two-thirds of the people forced to give up their homes were African-Americans. Moreover Dr. Fillilove found that blacks were “five times more likely to be displaced than they should have been given their numbers in the population.”

The loss of homes and businesses by lower income property owners has a devastating impact. As Victimizing the Vulnerable states “… when poor residents are displaced as a result of eminent domain they bear enormous economic and psychological burdens that even those with middle incomes find difficult to shoulder.”

The impact of the Kelo decision transcends race. Lower income property owners are most at risk because they have the least ability to fight back and because there is much profit to be made in turning less valuable property into more valuable property. Unless action is taken at the state level more and more private property owners of all races will become victims of the abuse unleashed by the Kelo decision.