One usually thinks of law review articles as detached, dry, formal, and arcane. This is particularly true of those dealing with property. Even if articles are billed as an “interdisciplinary” effort, this generally means the occasional introduction of similarly detached and desiccated material from other fields.
The article Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, by Yxta Maya Murray, shatters that mold. In this work, Murray – a legal scholar and the author of six novels – writes of the infinitely complex layers of law, politics, psychological bias, and human need that eminent domain involves in a way that it has not been done before.
Eminent domain has long been an extremely controversial idea in the American legal and political landscape. Indeed, the Kelo decision1 can well be described as the most universally vilified United States Supreme Court decision in the last twenty years. That decision, which upheld the taking of modest private homes for the purpose of commercial and residential economic development, ignited a firestorm of controversy. Some of this reaction might be discounted as unjustified popular hysteria, fueled by politicians and interest groups with little understanding of the true legal issues involved. But the breadth and depth of public outrage indicated that something about this decision tapped a raw nerve beyond the usual concern about winners and losers in politics and government.
Particularly powerful, in my view, was the lurking recognition that the losers in that case – and other eminent domain cases – were preordained. Justice O’Connor, in her famous dissent in Kelo, expressed the view that after the decision “all private property is now vulnerable to being taken and transferred to another private owner,” in the service of some imagined public benefit.2 But we know better. The risk of loss of one’s home through eminent domain is not a risk equally extended to all; it is, as a structural matter, extended only to a particular class of persons. If the goal is to create “new jobs and increased tax revenue,” or “beautiful …, spacious …, [and] well-balanced spaces,” as stated in Kelo3, there is little doubt how the older, “run-down” neighborhood will fare as compared with an area of half-million-dollar homes with manicured lawns and gardens.
The idea that the community-destruction aspects of eminent domain fall on those without political and economic power is not new. Although Murray agrees with this, her article takes on a much deeper and more difficult issue: What if eminent domain is used to eliminate blocks of presumably vacant and crumbling structures that everyone – including politically and economically disenfranchised residents – believe must be removed? What if – in other, more specific words – eminent domain is used as a transformation strategy in Detroit?
Murray introduces us to Detroit, the real Detroit, through both narratives and photographs. “Detroit,” she writes, “is the most dilapidated city in the nation and desperately needs to repair or remove the unsound housing that clutters its many neighborhoods.” (Pp. 397-98.) Murray has long been a critic of eminent domain, with particular criticism of so-called “blight condemnation.” Such programs, she has written, exploit and normalize racial and class-based vulnerabilities that determine the urban targets of removal efforts. However, in this article – through detailed interviews with developers and city residents, legal and political analysis, and relentless critiques of her own and others’ points of view – she explores the issues more deeply. She concludes that eminent domain, as a tool, might in fact be used in a way that vindicates both human and institutional values.
The ride toward that conclusion is both unsparing and rough. First, Murray points out that the Detroit Blight Removal Task Force, which is in the process of condemning dilapidated properties under an enhanced version of the city’s Nuisance Abatement Program, is operating in violation of both state and federal law. Under this scheme, titles of condemned property are transferred to the Detroit Land Bank Authority with no payment of compensation.
Next, Murray discusses how the views of political and economic decisionmakers are the product of what she calls the “optics” of eminent domain. (P. 421.) In a “downward-looking” view, dilapidated neighborhoods are equated with threats of illness and contagion. Blight is described in these accounts as a “malignant disease,” a “cancer” that is “contagious” and “radioactive,” as well as a “calamity,” a “tumor” to be excised. (P. 425.) In pictures and in narrative accounts, including those by photojournalists, poverty is mesmerizing, which gives observers a kind of “voyeur’s pleasure.” (P. 421.) The “upward” or aspirational gaze, on the other hand, contemplates visions of commercial beauty and affluence such as have been achieved with Detroit’s “Starbucks-bejeweled downtown” (P. 401). Images are created of coffers filled with jobs and money, and developers and allied politicians are portrayed as heroes with out-sized powers.
In both visions, the poor people who live in condemned neighborhoods are rendered invisible. For instance, a neighborhood after blight removal is seen by eminent domain architects as a “blank slate,” a “frontier.” (P. 432.) As Murray quotes one African-American woman, who works with the homeless, “‘[p]eople in Detroit don’t like that because … [it] means there’s nothing here.’” (P. 429.)
Murray’s critique of such visions, however, is not – itself – uncritical or simplistic. She forces herself to reckon, by her own account, with her own personal biases and the lenses through which she sees the world. She also wrestles with the truth – expressed by those she interviewed on Detroit’s streets – that “you can’t be a city full of poor people forever.” (P. 407.) Some economic development and capital investment is necessary to improve conditions and reduce abject poverty.
Murray’s suggested solution is surprising, in a way: that formal eminent domain should be used, with the stated goal of the alleviation of poverty in condemned neighborhoods. However, this is eminent domain with a twist. The decisionmakers will not be the usual city politicians and developers, left to their own judgment. Rather, “officials should 1) avoid using ‘anti-poverty’ as a cover for [economic programs that primarily benefit the upper classes] …; 2) guard against the condescension and paternalism [that interviews with people on the street consistently identified]; and 3) ensure that the agenda [for eradicating Detroit’s poverty traps] be shaped … by low-income people,” (P. 448) who understand those problems and are less likely to peer disgustedly at themselves.
This is not easy reading. We, in the academy, are not used to relentless and no-holds-barred critiques of our own motivations and biases. Yet, if we are honest, we know that Murray is right when she states that “legal actors who engage a low-income community in an eminent domain (or any other) scheme [for the purpose of rehabilitating it must] learn from that community.” (P. 449.) The goal is not simply to come up with another test – such as the “alleviation of poverty” or “awareness of human dignity” – in the legal equation of eminent domain; rather, we must learn how “to be with low-income people.” (Pp. 449-50.) Those who want to address the nation’s severe problems in Detroit and other urban centers must create “a practice of caring about” low-income people, pay attention to them, and challenge their own perspectives and ways of relating to others. (P. 452.)
Murray is not naive; she acknowledges that “I risk catastrophic understatement when I admit that this proves [to be] a very ambitious aspiration, even among intimates.” (P. 450.) “Disgust, hate, prurience, and condescension are difficult to prove [and graph].” (P. 447.) However, perhaps it took a novelist and scholar to figure out that we should try.
- Kelo v. City of New London, 545 U.S. 469 (2005). [↩]
- Id. at 494 (O’Connor, J., dissenting) (emphasis added). [↩]
- Id. at 481, 483. [↩]