Condemnation of Low Income Residential Communities Under the Taking Clause

Abstract

Many and varied voices today are calling for narrowing the scope of in the Takings Clause. In doing so, they primarily seek to limit, in varying degrees, the constitutional authority of government to use eminent domain for urban redevelopment. For critics, found both on the right and on the left, easy recourse to condemnation unduly diminishes the regard due private property or permits monied interests to leverage government power for their own ends. The critics have been successful in recent years, as several state courts have narrowed their interpretations of public use in their state constitutions. A striking example is Michigan, where the state supreme court recently overruled unanimously its notorious Poletown decision and held under the state constitution that a local government could not condemn land in order to turn it over to a private developer, even if the initiative would advance the public interest by creating many jobs and expanding the tax base. (1) Now the U.S. Supreme Court has held that eminent domain may be used for economic redevelopment under the federal Constitution, at least in some circumstances, but popular backlash threatens a crude legislative response. (2) Although the critics have raised some valid concerns, the limitation of public use advocated and, to some extent, accomplished seems wrong-headed. In this paper, I choose as my focus condemnation for urban redevelopment of residences of low income people, whether modest homeowners or renters. There are several reasons for this choice. Advocates for limiting eminent domain often invoke the harms suffered by low income urban residents when their homes are bulldozed. (3) Poor residents, often ethnic or racial minorities, historically have disproportionately suffered from condemnations and seem vulnerable in the local political process. While I agree that such residents deserve additional legal protection, I think that the critics have grasped the wrong end of the problem in advocating strengthened substantive judicial oversight of the purposes of redevelopment projects. Low income residents would be better protected by improving the procedures required before eminent domain may be used, and by changing the interpretation of just compensation, than they would be by limiting the meaning of public use. Understanding the resulting losses and contrasting them with those of other landowners whose property might be condemned also seems important for assessing the fairness or justice of using eminent domain for economic redevelopment. Eventually, such a focus also may help to clarify what types of losses through eminent domain should raise constitutional concerns. Local governments need broad powers of eminent domain to survive, and to support their poor residents in the competitive economy of the 21st century. Indeed, it seems likely that adopting most interpretations of public use advanced by property rights proponents would aid land investors and harm poor residents. Such measures would not protect any defensible understanding of property rights. In Part 1 of this paper, I describe the evolution of interpretation of the clause that authorizes the use of eminent domain for urban redevelopment. In Part 2, I chart the effort to narrow the scope of public use in order to eliminate or police redevelopment by condemnation. In this part, I present and analyze the arguments for such reinterpretation and the new rules suggested for how public use should be understood. I also sketch the changing economic and political situation of cities that lead them to take this activist approach to positive economic planning. I conclude that courts cannot justify limiting condemnation through policing the purposes for which condemnation is sought. In Part 3, I argue for expanded procedural protections before condemnation can deprive people of their homes. I also argue for the justice of changing our interpretation of just compensation to pay homeowners for the psychic and community losses they suffer through displacement. …