Liberals Use Eminent Domain to Advance the Wealthy (Part II)

Justice Thomas’s stood alone in his dissenting opinion because no one else wanted to say that Berman and Midkiff were incorrectly decided and should be overruled. Thomas recognizes the importance of Kelo since it basically nullified the public use provision of the Takings Clause. Thomas goes into a historical and textual interpretation of the Takings Clause and he concludes: “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” (this is a narrow interpretation of the Clause which Thomas backs up with a detailed analysis). Thomas points out words such as “general” or “general public use” could have been used if the Founders intended a broader interpretation of the clause. Thomas teaches us that the “Takings Clause” is not a grant of power, but a limitation of federal government power. He says the Takings Clause should be used in conjunction with the Necessary and Proper Clause such as: “Government may take property only when necessary and proper to the exercise of an expressly enumerated [constitutional] power.” Thomas points out the mistakes made in Berman and Midkiff: The Court “erred by equating the eminent domain power with police power of the states.” The end result of these cases: “Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid use.” Thomas bashes the majority: “Obliterating a provision of the Constitution, of course, guarantees that is will not be misapplied.”

Thomas then went on to explain how the liberal view of the Takings Clause is discriminatory. The famous footnote four case, United States v. Carolene Products (1938), provided constitutional provisions that protect “discrete and insular minorities.” “Surely, that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects”. It encourages “those citizens with disproportionate influences and power in the political process, including large corporations and development firms’ to victimize the weak.” Thomas provides data: “Of all the families displace by urban renewal projects from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of the families, 56 percent of the nonwhites and 38 percent of the whites had incomes low enough to qualify for public housing.” Furthermore “Urban renewal projects have long been associated with the displacements of black; ‘in cities across the country, urban renewal came to be known as Negro Removal.’” Thomas’s dissent should have demonstrated renewal economic projects such as Kelo should fit in Justice Kennedy’s “equal protection” thinking he used in Romer and Obergefell.

In his majority decision Justice Stevens said “We emphasize that nothing in our opinion precludes any state from placing further restrictions on the exercise of the takings power.” States have taken this opening to change their constitutions to protect private citizens from state police power and federal legislation.

Some may argue that urban renewal projects help minorities. That may be true to a certain extent. They also argue that everyone in eminent domain receives a fair compensation. That is also true, but fair compensation for a home in a slum is not much money. The amount of money “compensated” is not going to move a poor person out of poverty. Let’s face facts: urban renewal projects do not employ persons being displaced nor do they help them find new housing. It is a predatory practice and helps make the rich richer, the poor poorer and the government happy with more tax revenue.

Of course, we are all aware that liberals like to spread the wealth even if it is from the poor to the rich. In fact, a different ruling in Kelo could have endangered welfare and social justice. Consider this example: Property consists of one’s possessions. Hence, money is property. That means tax takings should only be used for public purposes: transportation infrastructure, parks, and government functions. Tax takings should not be used for private purposes such as welfare, Medicaid, or other programs that merely transfers wealth from one private citizen to another.