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Jewish World Review July 11, 2005 / 4 Tamuz 5765

John H. Fund

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Property Rights Are Civil Rights: Opposition to the Kelo decision crosses racial and party lines | In 1954 the Supreme Court declared in Brown v. Board of Education that racial segregation in public schools was unconstitutional. But that same year it also ruled in Berman v. Parker that government's power of eminent domain could be used to seize property in order to tear down "blighted" areas.

It soon became clear that too often urban renewal really meant "Negro removal," as cities increasingly razed stable neighborhoods to benefit powerful interests. That helps explain why 50 years later so many minority groups are furious at the Supreme Court's decision last month to build on the Berman precedent and give government a green light to take private property that isn't "blighted" if it can be justified in the name of economic development.

Within a week of the Supreme Court's 5-4 decision in Kelo v. New London, Rep. John Conyers, the ranking Democrat on the House Judiciary Committee and the longest-serving member of the Congressional Black Caucus, pronounced himself "shocked" to be joining with conservatives in backing a bill to bar federal funds from being used to make improvements on any lands seized for private development. He noted that the NAACP, Operation PUSH and the Leadership Conference on Civil Rights all believe "this court opinion makes it too easy for private property to be taken and [this is a practice] that has been used historically to target the poor, people of color and the elderly." The measure blocking federal funds passed the House by 231-189. A companion resolution condemning the Kelo decision was approved 365-33. Only 10 of the 43 members of the Congressional Black Caucus and only two members of the Congrssional Hispanic Caucus voted against the latter measure.

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Many Democrats who used to scoff at conservative fears about activist judges are now joining their barricades when it comes to eminent domain. "In a way this ruling is about civil rights because it interferes with your right to own and keep your property," says Wilhelmina Leigh, a research analyst with the Joint Center for Political and Economic Studies in Washington. "It means you have to hope and trust in the goodness of other human beings that if you buy real estate that you will be allowed to keep it." Few appear to be willing to trust government on this issue, which is why the Kelo decision has touched off such a populist reaction against it.

Martin Luther King III, a former president of the Southern Christian Leadership Conference, says that "eminent domain should only be used for true public projects, not to take from one private owner to give to another wealthier private owner." In 2001 he joined with the free-market Institute for Justice (which represented the Kelo plaintiffs) to stop the state of Mississippi from uprooting homeowners to make room for a Nissan truck factory. After he compared the state's actions to "a giant stepping on a grasshopper," public opposition to the taking mounted. The state finally announced that Nissan had come up with a way to redesign its facility so that the homeowners wouldn't have to leave.

Justice Sandra Day O'Connor warned in her Kelo dissent "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded." She added that the decision's effect is to "wash out any distinction between private and public use of property  —  and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment."

In her outraged dissent, Justice O'Connor failed to note that the Supreme Court's erosion of property rights began a long time ago. Before the 1954 Berman decision, with some exceptions, private property could be taken through eminent domain only for public uses. In Berman, however, the court declared the words "public use" to mean "public purpose," as defined by local officials. Soon the definition of "blight" became highly elastic, as governments began condemning working- and middle-class neighborhoods simply because they were desired by private interests. As Justice Clarence Thomas noted in his dissent in Kelo: "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them."

The definition of a "blighted" area eventually became so expansive that it 1981 the Michigan Supreme Court allowed the city of Detroit to raze a stable neighborhood called Poletown to make way for a General Motors plant. The Michigan Supreme Court finally repudiated that decision last year, in a ruling that noted that property rights would no longer exist in America if cities could simply take property when they found a use that yielded higher taxes or other benefits.

By contrast, the U.S. Supreme Court has now decided not to overturn its Berman precedent and indeed has expanded the deference it gives to local governments to determine what "public use" means. But states and localities are free to take their own steps to preserve private property rights. Nine states  —  Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina and Washington  —  already forbid the use of eminent domain for economic development except in narrow circumstances. The Institute for Justice has launched a $3 million "Hands Off My Home" campaign to convince other states to join them. In Georgia, Gov. Sonny Perdue is demanding a full review of eminent domain. The Texas Legislature has already debated a constitutional amendment that would ban the use of eminent domain solely for economic purposes.

No one argues that struggling cities or states don't have a right to improve themselves through redevelopment. But the new civil-rights coalition forming in reaction to the Kelo decision says that need can't justify land seizures from which politically connected players stand to gain at the expense of individual civil rights. If the half-century since Brown v. Board of Education has taught us anything, it is that some rights are and must remain nonnegotiable.

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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)

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©2001, John H. Fund