Condemnation of low income residential communities under the takings clause.

• Author: Byrne, J. Peter

Many and varied voices today are calling for narrowing the scope of "public use" 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 "public use" 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.

I.

PUBLIC USE FOR ECONOMIC REDEVELOPMENT

Current controversy has revived ancient debate about whether the term "public use" in the Takings Clause limits government from using condemnation for economic redevelopment. During the 19th century, courts debated whether the term required government (or the public in some other incarnation) to actually use or occupy the expropriated property. (4) Courts that required actual use and possession by government were plainly concerned, as a matter of political or legal theory, that it was unconscionable for government to take property from one private individual and give it to another. (5) This is the same intuition that drives courts today. Later, I wish to examine how weighty a consideration it should be, at least when the prior owner is compensated. But most courts in the past were not at all consistent, as courts generally found that the necessity for assembling land for canals and railroads and other projects owned by private actors persuasively justified the use of eminent domain. (6)

Courts were not driven to this narrow view by either the language or history of the Takings Clause. As many courts recognized in the 19th century, the term "use" in common speech could just as well mean purpose or benefit. (7) Moreover, the founding generation seems not to have been troubled by concerns or debate about the types of projects or goals for which eminent domain could be used. Early state courts that had fashioned limitations upon what a public use could be struggled to accommodate condemnations where a private person would own the expropriated land, such as the Mill Acts (permitting lower private mills to build works that flood upstream land of another) or railroad and canal construction, because they saw such measures as vital to a growing economy. Such courts answered the objection to forcing transfer of property to a private person by emphasizing either that the public might use the property (as in traveling with a private common carrier) or that the public would benefit from the private transfer; mills, railroads and canals were accessible to the public and created economic growth that benefited all.

But it appears more likely that the term "public use" was never intended to act as any restraint upon the power of eminent domain at all. In a careful analysis of the original understanding of the term, Matthew Harrington concluded that the term was descriptive rather than prescriptive. (8) After looking at English and colonial condemnation practices, early state constitutions, and the drafting history of the Fifth Amendment, he found that "the drafters did not intend to impose a substantive limit on congressional expropriations [but] intended to distinguish a certain type of taking which required compensation (expropriations) from those which did not (taxes and forfeitures)." (9) If this view is right, as it seems to be, (10) the power of eminent domain should be limited by the standards of the Due Process Clause to the same extent as any legislative authority. This would give coherence and weight to the Supreme Court's modern but otherwise unstable equation of the scope of the power of eminent domain and of police power. (11)

The law has developed, however, on the assumption that "public use" provides a firm but vague standard for substantive review of eminent domain decisions. Thus, state court decisions looked in different directions on different facts, with many odd and inconsistent distinctions. (12)

Remarkable, however, has been the consistency of the United States Supreme Court, which never has found an exercise of eminent domain to violate the public use requirement. (13) Early on, the Court eschewed any reliance on a "literal" reading of "public use." (14) Moreover, in many of these older cases the Court upheld exercises of eminent domain which had as their palpable purposes economic development and in which the condemned property would end up in private hands with little or no public access. (15) The Court justified its deference to state and local determinations of public use based upon the great variety of needs and conditions across the country. (16)

States continued to construe their own versions of "public use" in a variety of ways. An important 20th century milestone was the acceptance of the idea that eminent domain could be employed for slum clearance, even if the property would be given to private developers for more valuable development, because the removal of "blighted" properties was itself a "public use." (17) This approach was entirely consistent with progressive thought of the time, in its faith in scientific planning and modern design. But at the same time, it withdrew legal protection for the property interests of poor residents to an exceptional degree, since the houses of better off people would not be blighted, almost by definition.

Berman v. Parker, 18 decided 50 years ago next month, marks a decisive break. Giving a green light to ambitious urban renewal plans in Southwest Washington DC, the unanimous Court equated public use with the police power, essentially denying constitutional limits on the ends to be served by eminent domain, and embraced deference to legislative judgments about choice of means or details already well established in the Court's interpretation of the Due Process Clause. The urban renewal that followed represents the largest concerted effort to stem the tide of urban economic decline in our history, and left an ambiguous legacy that colors appraisals today of the deferential approach to interpretation of public use. (19) Many persons, disproportionately black and poor, lost their homes, and the public housing, highways, and commercial development that replaced them often have been seen as representing a sterile and socially naive approach to urbanism. It is useful to note that urban renewal on this grand...