Today marks the two-year anniversary of the now-infamous Kelo decision, in which five Supreme Court justices ruled that the U.S. Constitution permits the use of eminent domain to seize well-maintained private property for economic development. The ruling affirms a real estate developer’s promise that his or her project will produce more tax revenue than someone’s existing home or small business. Although such projects relying on the use of government force to remove property owners have been all too common in recent history, the decision marked the first time the Supreme Court allowed condemnation for a purely private purpose masquerading as a “public use.”
Justice Sandra Day O'Connor noted in her vigorous dissent that although virtually any property can be seized under such rationale, “the fallout from this decision will not be random. … [T]he government now has license to transfer property from those with fewer resources to those with more.” In a concurring dissent, Justice Clarence Thomas said that the ruling “guarantees that these losses will fall disproportionately on poor communities.”
Both of these predictions provide a testable hypothesis in the bounds of social science that we put to the test using U.S. Census Bureau data to develop a demographic profile of residents of neighborhoods where eminent domain is authorized or being used for private redevelopment projects. This demographic profile was then compared to that of residents in surrounding communities who were not subject to the loss of their property.
According to the data, those who live under the threat of eminent domain consistently live on significantly fewer earnings, with a median income of less than $19,000, compared to more than $23,000 in nearby neighborhoods. Twenty-five percent live at or below poverty, compared to only 16 percent in surrounding communities.
Those under eminent domain’s threat have completed less education and are more likely to be racial or ethnic minorities — some 58 percent of the population in threatened areas, compared to only 45 percent outside of project areas. All of these results were “statistically significant,” meaning the outcomes weren’t merely the result of chance; they can be considered representative of the overall population studied, that is, residents targeted by eminent domain.
This analysis — consisting of 184 neighborhoods ranging from small towns to large cities across the nation — vindicates the dire warnings of Justices O’Connor and Thomas. Although the data do not show that local officials and developers target specific areas because residents are lower-income, minority or less-educated, the fact remains that the awesome power of eminent domain is disproportionately trained on them. As Justice O’Connor wrote, “The Founders cannot have intended this perverse result.”
The revitalization of America’s communities does not and should not rely on “Robin Hood in reverse” — the use of government force to transfer property from the politically powerless to the wealthy and connected. This amounts to nothing less than the abuse of eminent domain power and requires the restoration of the constitutional right for all Americans to be secure in their homes or businesses regardless of their income, race or education.
Dick Carpenter is director of strategic research and John Ross is a research assistant at the Institute for Justice, which argued the Kelo eminent domain case before the U.S. Supreme Court.
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