Equity Issues in Propositions 98 and 99

The common perception about eminent domain issues is that government needs the power to force wealthy land owners to give up their selfish use for more public purposes. Public use doctrine is big in California where public access to beach land was mandated with the creation of the Coastal Commission. It is likely that proponents of broad interpretations of eminent domain, as evidenced in 99 and in the Kelo decision, will try to use an equity argument - that this power is necessary for the greater good. But as many have pointed out the issue cuts both ways.

Marginal Revolution , the excellent economics blog of Tyler Cowen and Alex Tabbarrok cited a Kansas City Star editorial which discusses an Alabama Advisory Commission of the US Commission on Civil Rights meeting to be held this week - the editorial begins with "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 Kelo decision set off a raft of state action to redefine the limits of permitted eminent domain actions. 42 states adopted new laws but 19 of those new laws allow states to take land under the loose definition of "blight." In the Kelo case the "public purpose" was ostensibly to enhance New London's tax base. By taking the houses of middle class taxpayers the city could encourage a major employer to maintain a presence in New London.

Interestingly, in his dissent on Kelo, Justice Thomas made the point that the broader definitions for eminent domain would be a slippery slope that would affect low income citizens more significantly. He first distinguishes between public purpose and public use - and suggests that only the latter is permitted under the Fifth Amendment. "Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation” for the taking, the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the Takings Clause would either be meaningless or empty." And later he comments "The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever."

Justice Thomas was passionate in his dissent arguing that the expansion of the definition of what is appropriate to take in eminent domain will fall on those with the least power. " Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with disproportionate influence and power in the political process, including large corporations and development firms” to victimize the weak."