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Fifty years ago, the U.S. Supreme Court went seriously off-track in interpreting the public use clause of the Fifth Amendment. The meaning of the public-use restriction on eminent domain was fundamentally altered by the court’s 1954 decision in Berman v. Parker, which upheld the constitutionality of urban renewal, a massive effort by federal, state and local governments to supposedly revitalize urban areas by removing slums and eliminating blight. The Berman case arose in southwest Washington, in a poor, largely minority area. Congress granted various government agencies the ability to acquire tracks of land through eminent domain for the purpose of economic redevelopment, including, if necessary, the resale of the land to private developers. A department store owner in the area objected to his property being taken and turned over to another private party. Before Berman, with some exceptions, private property could only be taken through eminent domain for public uses, not for purely private, profit-driven companies. In Berman, however, the court transformed the words “public use” to mean “public purpose,” as defined by the legislature. The purported public purpose underlying the takings in Berman was the removal of blight. The effect of this decision was to essentially read the public-use limitation out of the U.S. Constitution. It had huge implications throughout the country. It is interesting 50 years out to re-examine Justice William Douglas’ short opinion for a unanimous court. The opinion is light on the legal and historical justifications for the transformation of the public-use clause but it is filled with sweeping rhetoric about the pressing need to revitalize cities. The decision was clearly a product of its times, capturing perfectly the post-New Deal, post-World War II optimism in the ability of the government to centrally plan urban areas. Of course, the urban renewal projects of that time did not work out the way Douglas and many others had predicted. Indeed, as everyone from former Reagan adviser Martin Anderson to urban sociologist Jane Jacobs has since recognized, slum clearance efforts of the 1950s and 1960s turned out to be public-policy disasters, leading to the wholesale demolition and destruction of many communities from which cities have yet to recover. Moreover, in the words of many at the time, urban renewal more often than not meant “Negro removal.” Despite these realities, the legal legacy of Berman has lived on. In its wake, courts largely removed themselves from reviewing the use of eminent domain to take land for urban renewal and other private development projects. Two major trends followed: Governments expanded the definition of blight so that perfectly fine, working and middle-class neighborhoods were condemned simply because they were desired by private developers; and governments began to skip the charade of declaring an area blighted and instead used eminent domain to take homes and businesses for turnover to other private parties whom the government believed would produce more tax revenue. Some state courts expanded the Berman rationale even further by declaring that the “public benefit” of increased tax revenue justified the use of eminent domain to take land from A to give to B. Tide may be turning But courts are once again beginning to review the use of eminent domain for private development projects. The expansive use of blight definitions is under increased scrutiny. And the use of eminent domain for the generation of tax revenue is also being reconsidered by courts. This month, the Michigan Supreme Court unanimously overturned its infamous Poletown decision, in which, more than 20 years ago, it approved the use of eminent domain to take an entire neighborhood to give to General Motors to expand an automobile plant. And this coming term, the U.S. Supreme Court will consider whether to hear a case from New London, Conn. In that case, the Connecticut Supreme Court, by a 4-3 vote, upheld the use of eminent domain to take 15 homes purely for economic development. While the use of eminent domain to take blighted properties was upheld in Berman, the high court has never ruled on whether eminent domain can be used to take a nonblighted area to generate better tax revenues. The use of eminent domain for the creation of tax revenue is the broadest and most dangerous expansion of eminent domain yet realized. With state courts throughout the country coming down on different sides of this issue, the time is ripe for Supreme Court review-and the restoration of limits to one of the most serious governmental powers. Scott Bullock is a senior attorney at the Institute for Justice (IJ), which represents New London, Conn., residents in the Kelo case. IJ also filed an amicus brief in the Michigan case that reversed Poletown.

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