In Kelo v New London, decided at the end of the 2005 term, the Court held that a private residence could be taken from its owner and given to another private owner, as long as two conditions were met. First, the purpose of the taking must be for a “public use”. Building on its previous decisions, the Court held that economic redevelopment qualified as a public use, if the legislative body had concluded that the public would benefit, even indirectly, from the improvements by another private owner pursuant to a development plan. Second, the original owner must be given “just compensation”.
In this post, I will explore the first of these requirements: “what is a public use.” I limit the discussion to the potential impact of the eminent domain cases, I exclude the regulatory takings cases for now, on prospective New Orleans Post-Katrina redevelopment plans.
I invite you to consider Justice Thomas dissent, to evaluate whether this is a principled deviation from his "color blind" jurisprudence, or an unprincipled effort to use race to buttress support for his conservative originalist interpretation of the Takings Clause. Imagine the impact of his opinion had it been the majority opinion just two months later when Katrina hit New Orleans.
Justice O’Connor wrote a powerful dissent in which she rejected the idea that the legislature has the constitutional power to make a “law that takes property from A. and gives it to B” (citing a 1798 Supreme Court opinion of Justice Chase in Calder v Bull: O’Connor is joined by four other Justices, including Thomas. O’Connor noticed that “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” O’Connor’s objection is to the politically powerful beneficiaries.
Thomas’ dissent says “Urban renewal came to be known as ‘Negro removal”
What is interesting to me is that in contrast to O’Connor, who is concerned with the powerful beneficiaries, Thomas is concerned instead with the unequal burden on black residents of cities. In his separate dissent, in which no one else joined, Thomas adopts an explicitly racial perspective on the unequal burden on blacks and “members of discrete and insular minorities” citing U.S. v Carolene Products.
He begins his analysis with an originalist interpretation of the “public purpose” clause of the Fifth Amendment, concluding that the majority has done violence to the original or “natural” meaning of the word “public use”. His second line of argument is based on the instrumental consequence that urban redevelopment has disproportionately affected blacks, noting that “urban renewal came to be known as ‘Negro Removal’. Thomas argues that:
“In the 1950’s, cities “rushed to draw plans” for downtown development. “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.”. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland….. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black.. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.”
Is the Kelo dissent a principled deviation from Justice Thomas otherwise color blind jurisprudence, or is it an unprincipled effort to use race to support his conservative originalist interpretation of the Constitution? What contribution does the Kelo dissent make in understanding Thomas’ views on race conscious remedies?
Although I agree with Justice Thomas racial analysis in Kelo, but not his originalist reading of the “public use” clause, my agreement stems from my own views that:
- The history of urban redevelopment reveals a clear and disparate displacement of poor and black residents.
- The legislative process to which the Kelo majority defers is often influenced by political contributions from wealthy developers or corporations who have a direct pecuniary interest in shaping the development plan to impose the burden of relocation on the least favored citizens, who are most often black.
- The least powerful citizens are often locked out of participation by either voting representation and, or campaign contributions to the decision makers. See Professor Overton's new book, Stealing Democracy.
- I endorse much of the representation defect analysis that has developed around footnote 4 of U.S. v Carolene Products.
- New Orleans presents a special case of representation defect because the hurricane disrupted the voting representation of the poorest residents who have been largely unable to return to the city to express their views of the proper course for redevelopment planning.
- The public use and just compensation clauses read together will require New Orleans redevelopment plans to have an explicit focus on restorative justice and economic redistribution.
In my next post, I want to consider what is “Just Compensation” after a Hurricane and Flood caused by massive failures of government to prevent flooding and to rescue flood victims.