The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Authorities in the City of Manhattan Beach, California recently voted to return property unjustly seized by eminent domain, from an African-American family back in 1924:
On Tuesday, the Los Angeles County Board of Supervisors voted 5-0 to return the property to the descendants of Willa and Charles Bruce.
The Bruces bought the first of two ocean-view lots for $1,225, a property that could now be worth millions.
In 1924, the city of Manhattan Beach used eminent domain to force the couple off their land to turn it into a park. The city seized the property in 1929, however, it remained vacant for decades.
Following Tuesday's vote, the Los Angeles County Chief Executive Office will file a report within 60 days with a plan and timeline to return the property to the Bruce family….
"This was an injustice inflicted upon not just Willa and Charles Bruce, but generations of their descendants who almost certainly would have been millionaires if they had been able to keep this property and their successful business," Los Angeles County District 4 Supervisor Janice Hahn said. Hahn's district includes the Manhattan Beach property to be returned to the family….
"This was an injustice inflicted upon not just Willa and Charles Bruce, but generations of their descendants who almost certainly would have been millionaires if they had been able to keep this property and their successful business," Los Angeles County District 4 Supervisor Janice Hahn said. Hahn's district includes the Manhattan Beach property to be returned to the family.
The injustice the County is trying to remedy is a real one. City authorities seized the Bruce family's valuable property for what turned out to be no good purpose.
Media accounts of this case tend to assume that the land must have been condemned at least in part because of racial bias. That is entirely plausible. There is a long history of using eminent domain, zoning, and various other types of land-use restrictions to force out African-Americans. At the same time, it is possible that race was not the decisive factor in this particular case, since 25 of the 30 lots condemned for this project were owned by whites.
Whether motivated by racism or not, the takings were still deeply unjust. Destroying homes and business for a park that was never built is indefensible.
How much justice can be achieved by giving the land to the Bruce family's descendants almost a century later is debatable. The original victims of the injustice are long-dead. Some of their descendants are still alive, and it can be argued, as County officials have, that these descendants would be millionaires today, if only the property had stayed in the family.
Perhaps that is true. But, if history had taken a different, more just, course, these particular descendants probably would never have been born in the first place. Even a slight change in the course of events is enough to prevent a particular sperm and egg form meeting at a given time, and therefore prevent the birth of a specific person. The Bruce family might well still have descendants in this counterfactual world. But they would almost certainly be different people from those that exist in our world, today.
This problem is not unique to the Manhattan Beach case. It bedevils almost any effort to provide restitution for injustices that occurred many decades or centuries in the past. An example from my own family history illustrates the problem.
Back in 1918, the newly installed communist government of the Soviet Union unjustly seized my great-grandfather's small business (and, of course, many others like it). Returning the land to me and his other descendants today is a questionable remedy. After all, neither I nor his other living descendants would ever have existed had history taken a different course back then.
These problems should not prevent compensation of still-living victims of historic injustices, or children of theirs born before the injustice occurred. But the further removed in time we are from the injustice in question, the more likely it is that the only people we can provide compensation to are ones that probably would never have existed at all if the injustice had never been committed.
The obvious lesson here is that it is essential to avoid perpetrating such injustices to begin with. If they are committed, nonetheless, it is essential to provide restitution sooner, rather than later. Getting around to it many decades after the fact is simply too late.
But while it may be impossible to truly reverse the wrong committed in Manhattan Beach back in 1924, there is much to be done to prevent similar wrongs today. Sadly, the use of eminent domain to seize property for projects that never pan out, remains all too common.
It happened in the notorious case of Kelo v. City of New London, in which multiple homes were seized for a flawed "economic development" project that never got built, leaving a colony of feral cats as the only regular users of the condemned land. Much the same thing occurred in the recent Foxconn debacle in Wisconsin. Just last year, the New York Court of Appeals (that state's highest court), upheld a taking for a pipeline that might well never get built.
In my view, takings for projects that never get built violate the constitutional requirement (embedded in both the Fifth Amendment of the Federal Constitution and similar clauses in virtually every state constitution) that eminent domain can only be employed for a "public use." There can be no "public use" where the supposed purpose of the taking was never carried out, and especially not if this failure is predictable at the time of the taking. Even those who believe that "public use" should be defined broadly, should be able to agree that the government at least has a duty to take property only in cases where the claimed public use will actually occur.
State and federal courts should therefore crack down on takings of this type, by requiring the government to provide strong evidence that the condemned land really will be used for the project that supposedly justifies the use of eminent domain in the first place. Some states already have fairly strong enforcement of such constraints. But many do not. If judges are unwilling or unable to take this step, legislatures can enact reforms to the same effect.
Fixing this problem will not end all problematic takings. Eminent domain abuse is a complex, multifaceted issue that cannot be addressed through any one single reform. But preventing future takings like the one in Manhattan Beach would be a good place to start. The best way to deal with unjust takings is to prevent them from happening in the first place.