Contributor Post Created with Sketch. Friday Question: Is Eminent Domain a Civil Rights Issue?

 

Actually, what I mean is: should conservatives portray eminent domain as a civil rights issue?  Recently, Law Prof Ilya Somin (a great advocate of property rights) testified at a US Commission on Civil Rights hearing on the “Civil Rights Implications of Eminent Domain Abuse.”

Somin’s basic point was summed up in his introduction ”Americans of all racial and ethnic backgrounds have suffered from government violations of constitutional property rights. But minority groups have often been disproportionately victimized, sometimes out of racial prejudice and at other times because of their relative political weakness.”  He’s absolutely right. In the 2005 Kelo case, the Supreme Court blessed the power of state and local governments to seize “blighted” property — a thinly-veiled code for poor, and typically black, neighborhoods. 

But when Somin posted his testimony to the Volokh Conspiracy, a lot of readers objected to his using a “disparate impact” type of argument against violations of property rights.  After all, even if unconstitutional ”takings” affected only middle class whites, they would still be just as unconstitutional.  On the other hand, emphasizing the “disparate impact” might be a good strategy for winning people over to the correct side of the “takings” debate.  But then, are we legitimizing the argument that constitutional rights have to be judged by their impact on certain groups..?

What do you say?

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  1. tabula rasa Member
    tabula rasa Joined in the first year of Ricochet Ricochet Charter Member

    I believe eminent domain should be a civil rights issue. I have no problem with the idea of eminent domain (so long as it is used for limited purposes and the compensation is adequate): roads do need to be widened, schools need to be built.

    My problem is the use of eminent domain for “development projects” as in the Kelo case. It’s one thing to take a strip of someone’s property to widen a road; it’s quite another thing to destroy an established neighborhood.

    In the end, the eminent domain question goes to the fundamental conservative issue of the proper scope of government.

    • #1
    • September 24, 2011, at 2:23 AM PDT
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  2. Cas Balicki Inactive

    Turning eminent domain into a civil rights issue is to trivialize it. I think property is vastly more important than that. Property is the means by which we maintain our freedom from both government and our neighbors. It is the foundation to freedom in that property ensures self sufficiency, and, moreover, allows us to generate the wealth that our collective society needs to survive. Without property rights there is no collective worth the candle. One characteristic of all poor economies is the inability of persons so trapped to easily acquire title to property irrespective of whether they can afford it.

    • #2
    • September 24, 2011, at 2:38 AM PDT
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  3. Paul DeRocco Member
    Paul DeRocco Joined in the first year of Ricochet Ricochet Charter Member

    What are “civil rights” anyway? A long time ago, I believe they referred to rights of citizenship. But they seem to have devolved into “rights that only minorities have” because they’re the ones who get discriminated against by majorities. If that’s what they are, then, no, eminent domain reform should not be sold primarily as a way to protect minorities against the depredations of the majority.

    • #3
    • September 24, 2011, at 3:04 AM PDT
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  4. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    A man’s home is his castle. Unless the federal government wants it, or the state government, or the local government, or the developer with an “in”. A right is not a right if it is so compromised that anyone can take it from you, civil or otherwise.

    • #4
    • September 24, 2011, at 3:39 AM PDT
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  5. cdor Member
    cdor Joined in the first year of Ricochet Ricochet Charter Member

    If a private developer E.D.’s a neighborhood using political clout to do so, he should have to provide a replacement neighborhood. That cost might give a private developer second thoughts. If the government E.D.’s a property, it should have to pay 10% more than fair market value plus relocation costs. That would cause greater prudence from the government. Using civil rights to support the takings clause is a stretch that mostly muddies the waters. I must add, however…never say never. There might be times when it is actually a discriminatory act and I wouldn’t take that defense off the table entirely.

    • #5
    • September 24, 2011, at 4:22 AM PDT
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  6. The (apathetic) King Prawn Member

    We long ago gave up having rights to real property. We only lease our land and homes from local government. All one has to do to confirm this is not pay property taxes.

    As to property as a civil right, I’m with Paul DeRocco on this one. First, the concept of civil rights has been redefined beyond recognition. Second, property is a foundational, inalienable right. According to Locke, “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” The collective has no more claim over a person’s property than they have over his life.

    • #6
    • September 24, 2011, at 4:24 AM PDT
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  7. Steven Drexler Inactive

    GAH!! This erosion of the language infuriates me. Of COURSE it’s a civil rights issue. Whether or not there’s a component of racial inequality, when any level of government abuses eminent domain, it is an infringement of the 5th, and possibly the 4th amendment. Ya’ll remember – the “Bill of Rights”?? I haven’t clicked over to the Volokh site, but I’m sure many of the commenters there are banging this very point.

    Adam – no offense intended, but you’ve hit one of my pet peeves. As conservatives, we’re supposed to be color blind, and protective of everybody’s rights. Even allowing to go unremarked this constricted meaning of the term “civil rights” is to undermine the values that we treasure. Gah!!

    • #7
    • September 24, 2011, at 4:43 AM PDT
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  8. Chris Johnson Inactive

    It doesn’t really matter, as no citizen can expect to succesfully sue the SCOTUS, or other government entities. Forget Kelo; what about the new NYT palace for what is now a firm teetering upon bankruptcy? The NYT is not paying those rapaciously anticipated revenues, now. What is the recourse for the landowners that were thrown off the land for their new building?

    As long as a right is no longer different than a gripe, the distinction is without difference.

    • #8
    • September 24, 2011, at 5:01 AM PDT
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  9. Paul DeRocco Member
    Paul DeRocco Joined in the first year of Ricochet Ricochet Charter Member
    cdor: If a private developer E.D.’s a neighborhood using political clout to do so, he should have to provide a replacement neighborhood. That cost might give a private developer second thoughts.

    The trouble is, you can’t really create a neighborhood. Lots of planned communities try, but they don’t really resemble real neighborhoods, which evolve largely by accident.

    • #9
    • September 24, 2011, at 8:44 AM PDT
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  10. Old Federalist Member
    Old Federalist Joined in the first year of Ricochet Ricochet Charter Member

    Get ’em on board! Property rights have to be protected for all, and that should be stressed, but I’ve no problem with pointing out to various groups how and why such rights particularly benefit them.

    • #10
    • September 25, 2011, at 1:46 AM PDT
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