Commentary

Battle over Eminent Domain is Another Civil Rights Issue

Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal takings since World War II.

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 Sixteenth 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 schoolgirls 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.

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 which handed down Brown v. Board 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 black people, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than fifteen miles away. Several of the landowners, particularly those who lacked political clout and legal aid, ended up selling out at a discount.

In the three years since Kelo, 42 states, including Alabama, have enacted new laws limiting eminent domain power, but many of the new laws contain loopholes that make them easy to circumvent. Some 19 states have forbidden takings for “economic development” but continue to permit the exact same kinds of condemnations under the guise of alleviating “blight” — a concept defined so broadly that virtually any property the government covets can be declared “blighted.” If takings end up becoming a key constitutional rights issue for minorities in the 21st century, it will be fitting that the crusade against them begins in Alabama, where their victims have suffered most greatly. And there are few better places to kick off the debate than the Sixteenth Street Baptist Church, where the modern civil rights movement was born.

David T. Beito is chairman of the Alabama State Advisory Committee of the U.S. Commission on Civil Rights. Ilya Somin is an adjunct scholar at the Cato Institute.