What is Property? Property is Theft: The Lack of Social Justice in U.S. Eminent Domain Law

54 Pages Posted: 4 Sep 2010

Date Written: September 3, 2010


Must the government fulfill a social justice obligation when it takes property and, if so, from where does that obligation arise? Social justice has largely been absent in eminent domain law, particularly in the context of blight removal 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 an historical framework of social justice, this article examines the pervasive injustice in the realm of eminent domain. Specifically, the article explores the theory of social justice through four lenses: religion, philosophy, mythology, and the law, all of which share the common theme of a social or institutional responsibility and speak to the challenge of eminent domain abuse. The article then critiques competing social justice theories that appear to represent present-day rationales for both sides of the eminent domain debate. This article asserts that social justice requires justice as fairness. Thus, it requires an end to using “blight” and economic development as a pretext to exploit the poor and people of color. It also means implementing policies to restore communities in a way that would allow low-income residents to stay and enjoy the benefits of such improvements.

In American society, two distinct paths have emerged in achieving social justice: social movements and legal reform. This article looks at some examples of how social and legal reform movements have transformed the legal and political climate and led to greater social justice. This article contends that, even in the midst of post-Kelo social movements and legal reform, many poor communities continue their struggle to exist. Legal reform has, in large part, failed to address the injustice of carte blanche blight condemnations or to significantly limit unjust economic development condemnations. Furthermore, reform efforts have essentially ignored the plight of displaced low-income residents who are left without affordable housing in a neighborhood of their choosing. “Justice, if we only knew what it was” queried Socrates. As it turns out, in the case of eminent domain law, we know what justice should be: the equal ability of citizens, regardless of race, income or any other distinction, to protect their home and community from unwarranted condemnation.

Keywords: Social Justice, Eminent Domain Law, Private Property Rights, Social Movements, Legal Reform, Tribal Lands, Urban Renewal, Economic Development, Kelo

Suggested Citation

Jackson, Janet Thompson, What is Property? Property is Theft: The Lack of Social Justice in U.S. Eminent Domain Law (September 3, 2010). St. John's Law Review, Vol. 84, p. 63, 2010, Available at SSRN: https://ssrn.com/abstract=1671595

Janet Thompson Jackson (Contact Author)

Washburn University School of Law ( email )

1700 SW College Ave
Topeka, KS 66621
United States

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