As The Atlantic put it: “The trouble for Trump is that ever since the Supreme Court ruled in 2005 that the city of New London could turn over private property to another private company in support of economic development, the Republican right has considered eminent domain heretical.” [Seizing Private Property Is No Problem for Donald Trump, by Russell Berman, October 7, 2015]
It’s certainly heretical to the Beltway/libertarian set. Reason Magazine said Trump’s support represents a “destructive and unaccountable vision of government power” [Donald Trump Trashes the Constitution, by Damon Root (Email him) October 8, 2015] Marco Rubio, while not mentioning Trump, called the Kelo v. New London ruling, which reaffirmed the government’s authority to use eminent domain for economic development, an “egregious decision” and bragged about introducing legislation to limit that power. Neocon enforcer Jennifer Rubin [email her] immediately proclaimed that this strengthened Rubio’s “conservative credentials and breaks loose those voters who were under the mistaken assumption that Trump was conservative” [Donald Trump’s act is getting stale, Washington Post, October 8, 2015]
The Club for Growth is running a million dollar ad campaign against Trump as an opponent of private property rights. According to the Club’s spokesman, “Trump hasn’t wavered in his support of the terrible Kelo decision, and he still applauds the idea of developers getting rich while private property owners are forced out of their homes and businesses. It’s just continued proof that Trump is not a conservative.” [Quotes of the day, Hot Air, October 7, 2015]
But these attacks make the heroic assumption that, because libertarian policy wonks are outraged by Kelo, the average Republican voter gives two figs about the legal definition of “public use.”
What’s at issue here?
The Fifth Amendment states that no person shall be deprived of property without due process, nor "shall private property be taken for public use, without just compensation." This implies that the government may take private property through its eminent domain power for “public use” so long as it compensates the property owner.
“Public use” traditionally refers to government-owned public works like roads, canals, and parks. Conservative and libertarian wonks claim Kelo radically expanded the definition to include economic development for private use. However, this view is just as stupid as that of liberals who think Citizens United established corporate personhood.
In the 1954 case Berman v. Parker, the Supreme Court upheld the use of eminent domain to prevent “slums” and “urban blight.” The court described the area that the District of Columbia tried to revitalize:
Surveys revealed that, in Area B, 64.3% of the dwellings were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating. In the judgment of the District's Director of Health it was necessary to redevelop Area B in the interests of public health. The population of Area B amounted to 5,012 persons, of whom 97.5% were Negroes.There was no dispute about whether the government could condemn slums or blight. In Parker, however, the Supreme Court held that District of Columbia could also take property that was not blighted if it reasonably believed that it was necessary to prevent more slums. The court pointed to a long expansive use of eminent domain that went to private parties going at least back to the beginning of the 20th century.
Kelo merely reaffirmed this long-held precedent. At most, it slightly expanded the doctrine by allowing public use to apply to general economic development rather than destruction of public harm.
So why was the Beltway Right so infuriated?
One reason: it’s another opportunity for them to indulge their silly passion for making common cause with Leftist black organizations. The NAACP and Southern Christian Leadership Council filed amicus briefs against eminent domain. Libertarians and conservatives have seized on this opportunity to portray liberals as the “real racists.” Thus Gail Heriot, a white Republican on the US Commission on Civil Rights complained that economic development takings “disproportionately affect minority neighborhoods” (more on this below). She qualified that “I am often skeptical of proposals to cast some social ill as a discrimination issue simply because of its disproportionate effect on some racial or ethnic group.” But because some proponents of eminent domain had Politically Incorrect views over half a century ago, she doubts 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.Similarly, citing Kelo, Reason Magazine claimed “Progressivism likes to think of government as defending minorities from discrimination by private enterprise. But time and again, history has shown progressive ideas marching in lockstep with racist motives.” [Zoning's Racist Roots Still Bear Fruit, by A. Barton Hinkle, April 2, 2014]
[The Civil Rights Implications of Eminent Domain, 2014, PDF]
And libertarian legal scholar Ilya Somin [Email him] has argued that, while "overt racism is rarely a factor in modern takings," many believe "unconscious bias plays a role," and that minorities certainly suffer because they lack "political influence to resist effectively," [How Eminent Domain Abuse Harms the Poor, Spotlight on Poverty, May 26, 2015]
Of course, Susette Kelo was not a racial minority, but a white working class divorced nurse who bought and renovated a Victorian cottage. New London was economically depressed and the city hoped to install luxury hotels and shops where her house was in part of its bid to woo Pfizer Inc., which had a major office with 1,400 jobs, to the city. In the end, the city never revitalized the waterfront, Pfizer shut down its office, and Kelo’s old house is now a vacant lot. [10 years later, here’s what happened to the land seized and sold to developers in a controversial Supreme Court case, by Benjamin Weingarten, The Blaze, June 23, 2015]
That said, the prolonged and costly litigation also contributed to the city’s failure. And it’s not the Supreme Court’s role to decide whether the challenged action was good policy, just whether it was legal.
More importantly, New London, which was barely 50% white at the time, was in bad shape to begin with due to public housing, forced busing, crime, and immigration. Eminent domain occasionally results in bad outcomes for a handful of Americans, but these policies have uprooted millions of Americans from their homes, neighborhoods, and communities. And here, unlike eminent domain, the government does not compensate property owners for these lost value of their homes.
However, Conservatism Inc. groups like Club for Growth are either silent, or actively on the wrong side of these issues.
That said, some libertarians use Occam’s Butterknife to analyze this problem. For example, David R. Henderson complained “the Kerner Commission, even in the face of its own evidence, refused to admit that urban renewal was a contributing factor to the riots.” [Henderson’s Iron Law of Government Intervention: The 1967 Detroit Riot, The Freeman, October 26, 2011]
Now Obama has expressed his intention to radically expand public housing and forcibly integrate suburbs across the country. Yet Conservatism Inc. and GOP candidates like Rubio have only raised a few tepid objections.
Consider the one demographic bright spot in America: whites finally reclaiming many of the urban centers that they built. Neighborhoods in Brooklyn, Philadelphia, and Washington, DC that used to be warzones are now filled with young professionals, and even families, with beer gardens and gastro-pubs replacing liquor stores and pawn shops. A friend of mine in real estate jokes that he is following Pat Buchanan’s admonition to take back our country, block by block.
Strict law-and-order policing, which libertarians (especially Rand Paul) and Conservatism Inc. also oppose, lowered the crime rate enough for the initial “Urban pioneers” to brave the previously blighted slums.
Eminent domain also played an important role in this process. Here’s a recent and illustrative story on how it works in practice:
Hundreds of predominantly black families in Washington, D.C., are preparing to be forced from their homes to make way for massive redevelopment projects in the nation’s capital city.PC libertarians no doubt see burgeoning property rights advocates suffering at the hands of crony capitalists here, but it does work. (Ironically, the real crony capitalists are the Section 8 developers, but no-one criticizes them).
Scattered throughout Washington are four neighborhoods – Barry Farm, Lincoln Heights/Richardson Dwellings, Northwest One, and Park Morton – that have been targeted by the District government for their concentration of poverty, high crime and economic segregation. The neighborhoods and the homes in them will be razed and new “mixed-income” units as well as commercial spaces will be built in their stead.
The city government claims that the neighborhoods have been targeted for redevelopment because of the deteriorating nature of the communities coupled with federal budget cuts to housing programs.
[Beyond Gentrification: Hundreds Of DC Residents Being Forced From Their Homes, Mint News, April 20, 2015]
Donald Trump acknowledges his positions are at odds with many conservatives. He recently told Breitbart News: “I was just talking with some very conservative people today, and they just don’t understand eminent domain.” Even Breitbart, which has usually defended Trump, felt obliged to add that “Most who subscribe to the limited government world view believe Trump is wrong on eminent domain, at least as it relates to taking private property for private development with tangential public benefit, as opposed to direct public benefit. [EXCLUSIVE: Donald Trump Pushes Back Against Critics of His Eminent Domain Position, by Michael Patrick Leahy, October 8, 2015]
Yet if the Trump’s enduring success has taught us anything is that Republican voters are not libertarian ideologues. He recognizes that politics is about “Who, whom?”
And. with the exception of outliers like Susette Kelo, eminent domain does not affect Republican or Independent voters’ private property.
John Reid [email him] is an American citizen and a recent law school graduate.