David Beito, chair of the Alabama Advisory Committee to the US Commission on Civil Rights has an insightful post about the use of condemnation of supposed “blight” in Montgomery, Alabama.
The stories describe how “eminent domain through the back door” has become commonplace in Montgomery, the cradle of the modern civil rights movement. Under this system, Montgomery has demolished homes without the normal due process of conventional eminent domainand often gives little notice. The city alleges that these homes are “blighted” but, as the story on Jimmy McCall shows, at least some are in excellent repeir.
Typically, under eminent domain through the back door, the city of Montgomery bills the owner for the cost of demolition and he or she is left with an essentially worthless property. The victims are often low-income blacks, many of home live near or in Rosa Parks old neighborhood.
The results are disappointing, but unsurprising. I addressed this issue at some length in my article, Equal Protection from Eminent Domain: Protecting the Home of Olech’s Class of One.
Tragically, the victims of eminent domain takings for private development tend to be those least prepared to fight against it. The Supreme Court exacerbated this unfortunate fact in the landmark case Kelo v. City of New London, where it held that the government can use the power of eminent domain to take a person’s home for the purpose of private development that might improve the community’s economy.3 While Kelo generated many effective eminent domain reform bills in the states, this seminal case foreclosed a golden opportunity to restore meaningful protection for property rights under the Public Use Clause.4 This ruling made challenging eminent domain takings for private development under the Fifth Amendment a daunting, if not impossible, task. Because eminent domain takings incongruously fall on the poor, uneducated, or minorities who have difficulty competing in the political process,5 Kelo greatly impacted the ability of the weakest parts of society to keep their own homes free from the path of the bulldozer. This Article proposes a novel alternative avenue to challenge these takings and guarantee equal protection from eminent domain.
The research I conducted for this article seem to confirm Beito’s findings:
Governments using the power of eminent domain for private development disproportionately impact poor, uneducated, and minority homeowners.51 Activist David H. Harris, Jr. has identified eminent domain as a primary cause of the loss of property by African Americans.52 Professor Imperatore contended that “[b]light removal takings often impose a disproportionately racial burden on those who inhabit condemned sites, and there exists a close relationship between findings of blight and urban renewal and economic redevelopment projects.”53
By comparing census data from areas targeted for eminent domain with those of the surrounding community, Dr. Dick Carpenter revealed how eminent domain abuse disproportionately impacts the poor, those with less education, and minorities.54 Taken together, more residents in areas targeted by eminent domain—as compared to those in surrounding communities—are ethnic or racial minorities, have completed significantly less education, live on significantly less income, and live at or below the federal poverty line in significantly greater numbers.55
This is truly sad and unfortunate. Tragically, the victims of eminent domain takings tend to be those least prepared to fight against it.
H/T Ilya Somin at Volokh who also has a great Op-Ed on just this issue.