Somin on Shared Roots of Property, Civil Rights

Eminent-domain abuse is a crucial constitutional rights issue that historically has destroyed communities and opportunities for minorities, says Professor Ilya Somin, writing with David T. Beito, chair of the Alabama State Advisory Committee on Civil Rights and a recognized expert on urban development.

An op-ed co-written by the two and appearing in The Orlando Sentinel, The Kansas City Star, and the Birmingham News points out that the Supreme Court's ruling in Kelo v. City of New London gives government broad powers in forcing transfers of private property, in many cases owned by low-income minorities, to commercial interests for the purpose of "economic development." Citing cases in which they believe government has used economic development through declarations of blight and urban renewal to unjustly victimize minorities and the poor, the authors argue that takings are, in fact, a constitutional issue for those affected.

Shared roots of property, civil rights, The Orlando Sentinel, April 28, 2008. By David T. Beito and Ilya Somin.

"The fact is that eminent-domain abuse is a crucial constitutional-rights issue. On Tuesday, the Alabama Advisory Committee of the U.S. Commission on Civil Rights will hold a public forum at Birmingham's historic 16th Street Baptist church to address ongoing property seizures in the state. The church was not only a center of early civil-rights action, but also, tragically, where four school girls lost their lives in a bombing in 1963.

"Current eminent-domain horror stories in the South and elsewhere are not hard to find. At this writing, for example, the city of Clarksville, Tenn., is giving itself authority to seize more than 1,000 homes, businesses and churches and then resell much of the land to developers. Many who reside there are black, live on fixed incomes, and own well-maintained Victorian homes. At a City Council meeting earlier this month that overflowed with protesters from the neighborhood, local resident Virginia Hatcher charged that that the threat of forcing 'people from their homesteads of many years' through 'underhanded political manipulation' was not only 'un-Christian' but had created a climate of fear.

"Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn't notice until the U.S. Supreme Court's 2005 ruling in Kelo v. City of New London. In Kelo, the court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of 'economic development.' The Fifth Amendment requires that such seizures be for a 'public use,' but that requirement can be satisfied, the court ruled, by virtually any claim of some sort of public benefit. Many charge that Kelo gives governments a blank check to redistribute land from the poor and middle class to the wealthy. Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that '[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged.' Unfettered eminent-domain authority, the NAACP concluded, is a 'license for government to coerce individuals on behalf of society's strongest interests.'

"Some earlier civil-rights champions, by contrast, often ignored, or worse helped to undermine, the rights of property owners. Ironically, the same U.S. Supreme Court that handed down Brown v. Board of Education in 1954 also issued Berman v. Parker, in which the court allowed the District of Columbia to forcibly expel some 5,000 low-income African-Americans from their homes in order to facilitate 'urban renewal.' It was Berman that enabled the massive urban-renewal condemnations of later decades, which many critics dubbed 'Negro removal' because they too tended to target African-Americans.

"Four years ago, the city of Alabaster, Ala., used 'blight' as a pretext to take 400 acres of rural property, much of it owned by low-income blacks, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than 15 miles away. Several of the land owners, particularly those who lacked political clout and legal aid, ended up selling out at a discount."

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