October 10, 2005

... But Do New Orleans Re-builders?

by PG

Jumping off the title of my last post, I wonder what the effects of New Orleans's reconstruction will be on the African American population, who are a majority of the city and the racial group worst-hit by the hurricane. Hence Kanye West's declaration that the federal government's lag in aid was a sign that "Bush doesn't care about black people." Will Baude notes that the Kelo decision, contrary to what a Washington Post reporter may believe, has little impact on post-Katrina rebuilding. The pre-Kelo precedent already permitted takings to clear out urban blight, and if anything qualifies as blight, surely a flooded city in which the buildings still standing are going to be severely damaged and full of noxious mold and other dangers to inhabitants does. Will seems to think that Clarence Thomas (as usual) may have regarded even the blight precedent as non-binding and worthy of overturning.

One of the issues both Justice Thomas and Justice O'Connor raised in their dissents was the impact takings have on African Americans. As a lower-income minority group with a history of being discriminated against in the housing market, they are more likely to live in areas deemed to be blighted, or (in the post-Kelo world) to be creating insufficient tax revenue.

Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” Carolene Products, surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.

Of course, this assumes that poor communities routinely own the land on which they live, an assumption that may be true in rural parts of the country but is unlikely in places like New York or other areas citified enough to have urban blight. As I snarked in an earlier post, "I had thought those without any property for the government to take to be the most unfortunate, but apparently having property taken against your will, even when you are compensated for it, is more deserving of conservative pity." The Supreme Court seems to have no interest in barring the displacement of poor and minority communities if that displacement is approved by their landlords.

To bring this back to the immediate situation of the low-income renters in New Orleans, if the owners of the land are happy to sell it off to the city, the federal government or whatever developer shows up with a big plan to remake the Big Easy, there's no help for them at all. If we want to protect that group's interests, we have to require in any re-structuring plan that some provision be made for housing at reasonable rents -- yet that kind of regulation is likely to be seen as choking potential uses. The case of post-Katrina New Orleans may show just how little difference Kelo or non-Kelo makes to the most vulnerable, O'Connor's and Thomas's plaints notwithstanding.

October 10, 2005 07:46 PM | TrackBack

The takings clause seems particularly irrelevant in the N.O. context, since the property is essentially worthless. The flood has destroyed any improvements to the property, leaving only the value, and for any areas where the city decides not to rebuild, the land value presumably drops to zero as well. I suspect that many of those owners will simply walk away from their property.

Posted by: Tom T. at October 11, 2005 08:27 AM
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