Tuesday, March 21, 2006

Eminent domain and insular minorities

  One of the most remarkable public responses to law in recent years has been the outcry over the Supreme Court's upholding the broad right of government to take private property through eminent domain when the land is destined for private hands.   The decision in Kelo v. New London, Conn., has spurred initiatives in nearly every state, a well as in Congress, to limit eminent domain.  I find it intriguing that so many citizens appear to find it objectionable that government can take their house for an urban redevelopment plan, when governments have  always routinely taken houses for public land, such as for city halls and roads.  Does the fact that land is going to end up in private hands make so much of a difference?  Do citizens see in eminent domain destined for private hands a much greater potential for abuse than condemnation for roads, etc? 
   The "liberal" criticism of eminent domain - that property of poorer and less politically powerful groups in society tend to be the targets of eminent domain - failed to make any apparent dent in the thinking of the Supreme Court in Kelo.  I suggest, however, that arguments of unfair effect on insular groups might eventually form the best defense against eminent domain destined for private hands - at least in the halls of government, if not in the courts.  The experience of the "environmental justice" movement - which asserts that environmental hazards have been disproportionately and unfairly sited near racial minority neighborhoods - may have had its greatest success simply in mobilizing communities that previously would not have stood up for their interests.    
   An example of the phenomenon in the world of eminent domain may be playing out in Washington, D.C., where the city is evicting a number of small businesses on land destined for the new city-financed baseball stadium.  A number of the businesses are gay-oriented shops.  Whenever an insular minority suffers disproportionately from a burden of government, law (both lawmakers and courts) should look very closely at why this adverse impact had to happen.

http://lawprofessors.typepad.com/land_use/2006/03/eminent_domain_.html

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