Tutt on a Blightened Scrutiny

Andrew Tutt (Yale - Information Society Project) has posted Blightened Scrutiny (UC Davis Law Review) on SSRN.  Here's the abstract:

There is perhaps no fate worse than a declaration that one’s property is blighted. With that label in hand, the government obtains a virtually limitless power to regulate, to condemn, and to take for the greater good. Yet, the word “blight” is nearly meaningless, functionally and legally. Times Square, downtown Las Vegas, unspoiled wildlife habitat, prime Brooklyn real estate, and the entire city of Coronado, California all have been declared blighted at one time or another. Since the Supreme Court’s decision in Berman v. Parker in 1954, courts nationwide have applied the most deferential scrutiny to blight designations and the takings they license.

In a time before Kelo, the idea that the state might declare a property a “blight” and condemn it thereby was merely disquieting. But now, standing as it does as the last line of defense between a property owner and the State — undermined by the dangerous incentives to take advantage of its deep conceptual failings — blight rises to a level of Constitutional concern. “Blight” in all its forms is State Aestheticism, a constitutionally suspect category. Throughout American history, across fields as diverse as First Amendment law, Constitutional Privacy, Intellectual Property, Torts, Contracts, and indeed the law of Property itself, the shadow-right to be free of the State’s aesthetic judgments surfaces and resurfaces. This article discusses this constitutional right to aesthetic and moral self-determination as it has developed in fields ranging from the Constitutional right to privacy to free expression to property itself. It first canvasses how aesthetic neutrality was protected historically. It then discusses how this shadow-right manifests across a variety of areas of constitutional, statutory, and common law, and argues that this implicit Constitutional right has become increasingly explicit in recent years. Finally, it argues that the judicial failure to carefully police blight takings constitutes a significant oversight in our Constitutional order.

This Article concludes that it is time to revisit Berman’s premises and its holding. Following Kelo’s elimination of the last theoretical limitations on the “public use[s]” for which the State may exercise the power of eminent domain, blight’s newfound role as the primary protection for property owners from illegitimate takings means its legal and conceptual defects are due for reexamination, and a return to heightened scrutiny is warranted.

Steve Clowney