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

I hear it every day: conservatives do not like minorities or the poor. However, when it comes to eminent domain cases, liberals are the ones who favor government intrusion in favor of the wealthy and corporations over minorities and the poor. Eminent domain cases are covered under the Fifth Amendment’s “Takings Clause” which states: “nor shall private property be taken for public use, without just compensation.” In Calder v. Bull (1793) Justice Chase said that government is restricted from passing a “law that takes property from A, and gives it to B.” However, liberal interpretations of the “Takings Clause” has completely changed the meaning of the clause to include taking private property for private use. A great case to examine is Kelo v. City of New London (2005) to illustrate this point.

In Kelo the Court held (Justice Stevens wrote the majority opinion) the City of New London can take Kelo’s property for private reasons if it meets public concerns such as creating “new jobs and increased tax revenue”. Furthermore, even if the takings could have possible public implications, then it is constitutional. New London’s renewal plan included, among other things, clearing space for a new Big Pharma (Pfizer) facility. Two previously erroneous Supreme Court decisions were the key precedent used for this case: Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984). In Berman the Court held that a DC redevelopment plan was constitutional and in Midkiff the Court held that a Hawaii plan to allocate land from wealthy land owners to private citizens was constitutional. In Berman, the Court held that the area being redeveloped was so run down that it was a public hazard making the takings acceptable (even though much of land would be used to build new private businesses). In Midkiff the Court held the State’s purpose to end the “social and economic evils of land oligopoly” qualified as a valid use of police power. Interestingly, Justice O’Connor wrote the majority opinion in Midkiff, and the minority opinion in Kelo.

Justice O’Connor’s dissent in Kelo is well reasoned (unlike Midkiff). O’Connor starts by stating “that no word was unnecessarily used, or needlessly added” to the Constitution. She continues to point out two viable reasons for the government to take private property: 1. For “a road, a hospital, or a military base and 2. For a “transfer to private parties, often common carriers, who make the property available for public use – such as with a railroad, public utility, or a stadium.” O’Connor offers a third reason that is flawed which gave birth to Berman and Midkiff. O’Connor points out that 64% of the property taken in the Berman case were “dwellings beyond repair.” But what about the other 36% of properties confiscated that O’Connor fails to acknowledge. Mr. Berman’s store property was given to another private business even though it was well maintained. O’Connor would rightly assert “police power and ‘public use’ cannot always be equated.” O’Connor summarized the ramifications of the majority’s decision in Kelo means “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” O’Connor is correct to point out if the only basis for taking property is to increase government tax revenue, they are free to take anybody’s property; no one is safe.

Justice Kennedy was again the swing vote. In his concurring opinion he states “under the Equal Protection Clause [the Court] must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pre-textual public justifications.” This explains so much and why Kennedy was a swing vote in Romer v. Evans and Obergefell v. Hodges (2015). In Romer the Court struck down a law prohibiting preferential treatment to gays for things such as quota systems for schools or corporations. Of course, Obergefell was the famous case that made gay marriage a fundamental right. Maybe if Kelo was gay then Kennedy would have struck down this law, but his opinion in Romer and Obergefell conflict with Kelo since Kelo discriminates against the poor. For example, in Bailey v. Alabama (1911), the Court saw through a law that was valid on its face, but had discriminatory intentions. The state of Alabama made blacks sign work contracts and when blacks broke the contract they were subject to hard labor in prison. The problem with law was that white people did not have to sign work contracts, so the law was targeting blacks to make them slaves again. Kelo and Berman are no different. States are targeting depressed areas to take property from poor people and to give it to wealthy rich people and companies like Pfizer. Berman and Kelo’s properties were well maintained and should not have been taken simply because the neighborhood around them was depressed, especially for private economic reasons. It is important to note that Kelo’s property was a vacant lot for several years after this decision. When developers financing fell through, Kelo’s lot was vacant gaining no tax revenue and was at one point used as dump site after Hurricane Irene hit the town. Liberals will never tell you this and the media will not cover it, but Kelo is an example of liberal social justice gone awry.