What Is Property? Property Is Theft:* the Lack of Social Justice in U.S. Eminent Domain Law

Article excerpt

INTRODUCTION

The individual right of property is not simply an economic right .... Individual property rights are also about selfexpression, self-governance, belonging, and civic participation. A proper theory of constitutional protection of property should therefore be concerned about possible abuse of government power when cities condemn land, especially residential land, to enable projects whose benefits redound substantially to private entities. Monetary compensation, even when it satisfies the constitutional requirement of being "just," is not always enough to make the dispossessed landowner whole.1

This is not an article against eminent domain per se. In fact, when used responsibly, the power of eminent domain can produce economic and social benefits for a community and residents within the community. When, however, a government abuses its power of eminent domain, the economic and social costs to the affected individuals and neighborhoods, combined with the moral costs, far outweigh the benefits. When that abuse occurs, the government, and often the courts, have failed in their obligation to create and maintain a just social system.

This Article contends that social justice is largely absent in eminent domain law, particularly in the context of blight removal2 and economic development condemnations. Government takings too often result in an undue burden on poor people and communities of color in a way that resembles Discovery-era takings of land from American Indians. In the periods of colonization and western expansion of the United States, as well as in recent takings, the lack of social justice has had a profound effect: the disproportionate burden and exploitation of people who have the fewest resources - legally, politically, or economically - with which to resist the intrusion of eminent domain. Rooted in a historical framework of social justice, this Article examines the pervasive injustice in the realm of eminent domain. Specifically, the Article critiques the too often unchecked power of governments3 to declare neighborhoods "blighted," or merely in need of revitalization, so that jurisdictions can hand the land over to private entities for "better" uses. Such action divorces eminent domain from principles of social justice in a way that is inconsistent with the values upon which American society purports to function.

Socrates once pondered, "justice, if only we knew what it was."4 When we add the modifier social the task becomes more challenging. What do we mean by the term social justice, and how does that concept fit within American jurisprudence? More to the point, to what extent do we find social justice reflected in American property jurisprudence and in the arena of eminent domain? Lawyers, politicians, activists, theologians, and everyday citizens use the term social justice to call for legal, political, and social change. One would think that a phrase so ubiquitous would have a common meaning, but such is not the case. Still, most people claim to know justice when they see it. But rather than some absolute meaning, judgments about that ideal tend to reflect the image of the seeker looking in the mirror. Moreover, notions of what should be done in the name of justice tend to change as society changes. Despite such daunting considerations, it is imperative that we examine the principle of social justice in the context of U.S. eminent domain law so that we can determine whether current eminent domain law upholds or undermines our country's commitment to justice.

The first part of this Article examines private property rights and the tension between individual and governmental interests. The second part explores the ideals and evolution of justice and social justice. This Section gives historical account of justice and social justice to provide a framework for those principles as they relate to eminent domain law. Part III looks at the introduction of social justice into American jurisprudence and addresses two ways in which social justice has been advanced in the United States: through social movements and through legal reform. …