Jewish World Review June 26, 2002 /16 Tamuz, 5762
The evolution of eminent domain is the story of the lasting power of Supreme Court decisions to alter the American cultural fabric
For generations, the descendants of Bahamian conch fishermen and their
families have lived in Riviera Beach, Florida. They would like to stay
there, in part because Riviera Beach is one of the few affordable
waterfront towns remaining in the state. But in all probability, they will
not be able to.
Over the winter, the city council approved the development of "Harbor
Village" by commercial yachting, shipping and tourism companies. The
project would involve razing about 1,000 homes.
The Riviera Beach families are not alone. Across the US, towns, cities and
state governments are allowing businesses to acquire private property by
stretching state and federal constitutions. It sounds like a tale of
bigfoot capitalism. But it is really a tale of bigfoot government. It is
also a reminder of how Supreme Court rulings can alter the fabric of social
life over decades.
The nominal goal of projects such as Harbor Village is economic
development. But while new stadiums or new malls may make political sense,
not all of them generate the growth or social benefit they promise. Indeed,
a similar development in Riviera Beach - albeit on a smaller scale -
foundered earlier. And public sector greed is at work: municipalities hope
their projects will bring revenue for their coffers.
The trend, being local, is hard to resist at a national level. But there
has been one effort, known as the Castle Coalition, as in "My home is my
castle" (www.castlecoalition.org), backed by the Institute for Justice, a
libertarian legal group. Its allies include both individual property owners
and Green parties in some states.
The story begins with the nation's founders, who feared "the despotic
power" of either the British Crown or a new federal government to assail
property rights. In the fifth amendment of the US constitution, they wrote:
"nor shall private property be taken for public use, without just
compensation". The states duly replicated the terminology in their
The issue is the meaning of "public use". It used to be clear: military
bases, highways and so on. But over the years, cities began expanding the
notion of "public use" to include "a public purpose" and even "public
benefit". Some used it to justify levelling poor neighbourhoods in order to
build something better.
In this, they won crucial Supreme Court backing. In a 1954 case, Berman vs
Parker, the court ruled that an urban renewal project involving the
compulsory transfer of families' and landlords' property to developers in
south-west Washington was allowable under the constitution because it
represented slum clearance. This ruling led to many others by lower courts,
making possible the widespread urban renewal programmes of the 1960s and
Matters were made all the easier by the fact that many of the properties at
issue were rentals. Slum landlords made easy targets. Indeed, the
expropriation of landlords enjoyed wide political backing. This was the US
version of Latin American land reform.
But the tower blocks that supplanted smaller-scale homes did not improve
the quality of life. On the contrary, they soon became centres of crime
more dangerous than anything that had preceded them. The shift prompted
Jane Jacobs to write The Death and Life of Great American Cities, a 1960s
eulogy for lost neighbourhoods. Today, any number of redevelopments and
public housing projects - Chicago's South Side being a prime example- are
now regarded as the cause of blight, rather than the cure. The tendency is
now to help the poor become homeowners, because property is viewed as the
key to social mobility.
Despite this, "public purpose" and "public benefit" legal actions continued
unabated. Indeed, there was a further change. Rather than merely claiming
blighted land for urban renewal projects, local governments began to claim
all types of property on behalf of private businesses. The argument was
that those businesses would be able to put the land to better economic use.
Sometimes "public benefit" condemnations are really about simple business
competition. The saddest example of abuse was the city of Detroit's
decision in the early 1980s to raze a working-class neighbourhood,
Poletown, in order to allow General Motors to expand its manufacturing
facility. Poletown was not a slum; it merely blocked an opportunity for
Detroit to please GM.
Then there was the Archie family, which lived for generations on a 24-acre
plot near Jackson, Mississippi, then was ordered off its property to make
way for a Nissan plant. The Archies were offered compensation but, as
Alonzo Archie noted, this was not the point: "You can buy a house but you
cannot buy a home."
The Archies sued and the state and Nissan backed down. But such an outcome
tends to be rare. In general, the cards are stacked in favour of
governments and their corporate allies. "Who is for expropriation and
redevelopment? All the leaders of the town," says Scott Bullock, a lawyer
who works with the Castle Coalition and the Institute for Justice. Local
politicians, businesses and even the press tend to cheerlead for
redevelopment. What is more, small landowners can rarely afford strong
legal representation if they want to fight developments.
Lately, some courts have shown some appreciation for the property rights
side of the debate. Illinois's supreme court ruled recently that "revenue
expansion alone does not justify" condemnation or expropriation. In the
case the court was considering, a private racetrack was trying to boot out
a neighbouring business in order to expand its car park.
But even now, local property owners tend to lose these legal fights. All
too often, "our town" becomes "their town".
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