Why Maxine Waters and John Cornyn agree on eminent domain.
12:00 AM, Apr 27, 2007 • By DUNCAN CURRIE
MAXINE WATERS and John Cornyn don't agree on much, but they do agree that government should not be acquiring private property for private economic development via eminent domain. They were both unnerved by the 2005 Supreme Court ruling in Kelo v. City of New London, which gave such takings a constitutional imprimatur. Soon afterward they teamed up to curb the reach of eminent domain laws and prevent Kelo from unleashing a raft of similar condemnations.
That Rep. Waters, a fiercely liberal Democrat from Los Angeles, and Sen. Cornyn, a dependably conservative Republican from Texas, should find such common ground might seem surprising. Indeed, Waters recognized that eminent domain reform would garner her some unlikely allies. As she testified to a House committee in September 2005, citing her work with local officials in California, "People are looking at us and saying, 'What is it that brings liberal Maxine Waters together with this conservative supervisor out of Orange County?' Well, you're right, you won't see that very often, but on this issue I think that you're going to see a lot of it because . . . we all basically share a basic value of the right to ownership of our land and our homes."
To better understand her position, consider a recent report published by the Institute for Justice, a public interest law firm that litigated the Kelo case. Its author, Dr. Mindy Thompson Fullilove, is a Columbia professor whose 2004 book Root Shock examined the history of urban renewal projects. Under the Federal Housing Act of 1949, "which was in force between 1949 and 1973," she writes, "cities were authorized to use the power of eminent domain to clear 'blighted neighborhoods' for 'higher uses.' In 24 years, 2,532 projects were carried out in 992 cities that displaced one million people, two thirds of them African American."
According to Fullilove, "African Americans--then 12 percent of the people in the U.S.--were five times more likely to be displaced than they should have been given their numbers in the population. Given that African Americans were confined because of their race to ghetto neighborhoods, it is reasonable to assume that more than 1,600 projects--two-thirds of the total--were directed at African-American neighborhoods."
These projects got a huge legal boost early on. In the 1954 case Berman v. Parker, the Supreme Court held that "blighted" urban property could be condemned even if "such property may later be sold or leased to other private interests." The Court found that city officials did not need to demonstrate a strictly defined "public use" of the property in order to exercise their eminent domain power; a "public purpose" would also suffice. This logic led directly to the Kelo ruling, which affirmed that "economic development" was a valid public purpose.
"We aren't just talking about expanding highways anymore," says Hilary Shelton, director of the NAACP's Washington bureau. "We've moved from real community need to profit. That criterion becomes even more exploitive." Shelton is not a categorical opponent of eminent domain: He stresses that urban renewal ventures can benefit (and have benefited) inner-city neighborhoods, if properly married to genuine community interests and legitimate public functions. "There are clearly some successful projects out there," he says. But there are also many failures--and many examples of exploitation. Impoverished minority communities "lack in political power," notes Shelton. "They're the most vulnerable."
The NAACP actually co-authored an amicus brief in the Kelo case. "The history of eminent domain is rife with abuse specifically targeting minority neighborhoods," it argued. "Indeed, the displacement of African Americans and urban renewal projects were so intertwined that 'urban renewal' was often referred to as 'Negro removal.'" Joining this brief "was, in many ways, a no-brainer for the NAACP," says Shelton.