The Volokh Conspiracy
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Last week, I wrote about the the criteria required to add a case to the "anticanon" of constitutional law, and suggested that The Chinese Exclusion Case of 1889 would be a worthy addition to the list of the Supreme Court's most reviled cases. In this post, I propose two other worthy additions: Village Euclid v. Amber Realty (1926), and Berman v. Parker (1954). To briefly recap, in my previous post I outlined three criteria that a case usually has to meet to enter the anti-canon:
1. Bad legal reasoning.
2. Terrible real-world effects.
3. Upholding government policies that promote racial discrimination and oppression.
The first two criteria apply to all anticanonical cases (though in a few instances, conventional wisdom sometimes overrates the extent to which a case really meets criterion 2). The third is not absolutely essential. But it is met by a large majority of anticanon cases.
Euclid and Berman readily meet all three requirements.
Euclid is the more famous of the two cases. It upheld exclusionary zoning against claims that policies severely restricting the construction of new housing and commercial facilities violated the Takings Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. The ruling opened the door to policies that locked millions of people out of areas where they might otherwise have found better housing and job opportunities. It continues to cause great harm to the present day.
The legal reasoning in Justice Sutherland's majority opinion for the Court is mediocre, at best. That may be because Sutherland and his conservative colleagues on the Court were ready to strike down the zoning restrictions at issue, until a late-filed brief by urban planners changed their minds, by pointing out that doing so might make it easier for poor and working-class people to move to affluent neighborhoods. Ultimately, three conservative justices still dissented, but Sutherland and Chief Justice William Howard Taft cast crucial votes for the majority.
Sutherland's analysis is notable for its evasion of most of the crucial arguments for the other side. He contends that zoning restrictions on construction of multi-family housing and new commercial enterprises are justified by the "police power," which gives government the authority to enact regulations that protect the health and safety of the public. There is indeed a long line of precedent indicating that at least some police power measures are exempt from takings liability. He also cites a variety of state court decisions upholding zoning restrictions on police power grounds.
But Sutherland ignores the fact that the real purpose of Euclid's zoning ordinance was primarily to keep poor people out, and that it went far beyond any plausible health and safety rationale. This reality was well-articulated by the district court opinion in the case, which struck down the law:
Obviously, police power is not susceptible of exact definition. It would be difficult, even if it were not unwise, to attempt a more exact definition than has been given. And yet there is a wide difference between the power of eminent domain and the police power; and it is not true that the public welfare is a justification for the taking of private property for the general good. The broad language found in the books must be considered always in view of the facts, and when this is done, the difficulty disappears. A law or ordinance passed under the guise of the police power which invades private property as above defined can be sustained only when it has a real and substantial relation to the maintenance and preservation of the public peace, public order, public morals, or public safety. The courts never hesitate to look through the false pretense to the substance….
The plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life. The true reason why some persons live in a mansion and others in a shack, why some live in a single-family dwelling and others in a double-family dwelling, why some live in a two-family dwelling and others in an apartment, or why some live in a well-kept apartment and others in a tenement, is primarily economic. It is a matter of income and wealth, plus the labor and difficulty of procuring adequate domestic service. Aside from contributing to these results and furthering such class tendencies, the ordinance has also an esthetic purpose; that is to say, to make this village develop into a city along lines now conceived by the village council to be attractive and beautiful.
Justice Sutherland has no real answer to this crucial point. Sadly, it may well be that this illicit and unconstitutional purpose was also the reason why he changed his mind and voted to uphold the Euclid zoning rules.
The district court also offered another crucial reason why severe zoning restrictions should be considered takings, requiring "just compensation" under the Fifth Amendment:
The argument supporting this ordinance proceeds, it seems to me, both on a mistaken view of what is property and of what is police power. Property, generally speaking, defendant's counsel concede, is protected against a taking without compensation, by the guaranties of the Ohio and United States Constitutions. But their view seems to be that so long as the owner remains clothed with the legal title thereto and is not ousted from the physical possession thereof, his property is not taken, no matter to what extent his right to use it is invaded or destroyed or its present or prospective value is depreciated. This is an erroneous view. The right to property, as used in the Constitution, has no such limited meaning. As has often been said is substance by the Supreme Court: 'There can be no conception of property aside from its control and use, and upon its use depends its value.' See Cleveland, etc., Ry. Co. v. Backus, 154 U.S. 439, 445.
The idea that the "property" protected by the Takings Clause protects the right to use as well as the right of ownership, as such, has deep roots in American legal history. Sutherland fails to deal with this point, too.
The effects of Euclid and later cases building on it were enormous. State and local governments all over the country cited it as justification for enacting zoning restrictions intended to keep out the poor, and often also deliberately targeting racial and ethnic minorities.
Today, scholars across the political spectrum recognize that exclusionary zoning was (and remains) one of the main causes of racial and class segregation in the United States. Richard Rothstein's book The Color of Law is a helpful overview of the relevant history.
In the twenty-first century, zoning restrictions are rarely motivated by racial bigotry in the same ways as back in the 1920s. But they continue to have huge negative effects on the poor and minorities, and also to inflict serious damage on the economy, as a whole. Over the last century, Euclid and other precedents based on it have facilitated policies that inflicted grave harm on literally millions of people seeking opportunity, as well as many thousands of property owners and businesses.
Unlike with the Chinese Exclusion Case, the justices who decided Euclid didn't openly endorse the racism underlying the types of policies they upheld. But empowering racists was an entirely predictable consequence of their decision, and indeed one that was well understood at the time.
Berman v. Parker (1954) is less famous than Euclid. In my experience, even a good many law professors have never heard of it. But the two cases have much in common. Both relied on highly dubious legal reasoning to uphold severe restrictions on property rights that predictably inflicted grave harm on the poor and minorities.
Berman upheld an "urban renewal" project in Washington, DC, which used eminent domain to forcibly displace thousands of people and numerous businesses in order to transfer the property to private business interests, who were expected to redevelop it. Most of the area in question was blighted or dilapidated. But that doesn't mean that the right approach was to destroy the neighborhood in order to save it.
Most lawyers and legal commentators have heard of Kelo v. City of New London, the controversial and widely criticized 2005 ruling in which the Supreme Court ruled that, although the Fifth Amendment only permits the taking of private property for "public use," the transfer of condemned land to private parties for "economic development" is constitutional. But Kelo was largely just a modest extension of Berman v. Parker, which was the first case in which the Court ruled that a "public use" can be pretty much anything the government says it is. Indeed, Kelo was actually slightly less deferential to the government than Berman. In the latter case, the Court ruled that the legislature's determination of what qualifies as a "public use" is "well nigh conclusive."
The Berman Court's defense of this ultra-deferential approach to public use is extremely weak. In my book on Kelo and other writings, I have outlined the strong originalist and living constitutionalist arguments for the "narrow" definition of public use, under which the use of eminent domain is only constitutional if it is for a publicly owned project, or a private entity that has a legal obligation to serve the entire public.
Berman is notable not just for its badly flawed conclusion, but also for Justice William O. Douglas' total failure to even address the opposing position. When he writes that the legislature can authorize the taking of property for virtually any purpose, that's a conclusory statement backed by virtually nothing.
In fairness, not all the evidence I collected in my book was known in 1954. But specialists were well aware that the narrow view of "public use" had been the dominant one throughout the nineteenth century. In the lower court opinion in the case, District Judge E. Barrett Prettyman - a prominent jurist at the time - partly ruled in favor of the property owners, and emphasized that the "extension… of the concept of eminent domain, to encompass public purpose apart from public use, [is] potentially dangerous to basic principles of our system of government." Prettyman was willing to uphold the taking of property that was itself a "slum" area, but not the taking of unblighted land for purposes of beautifying or enhancing the area. Douglas simply brushes aside Prettyman's concerns without bothering to explain why they are wrong.
The consequences of Berman were catastrophic. The project upheld in the case itself forcibly displaced several thousand people, nearly all of them poor African-Americans. Berman's force as a precedent authorized the use of eminent domain to forcibly displace hundreds of thousands of people - again, mostly poor minorities - for the ostensible purpose of alleviating blight and promoting "urban renewal."
These kinds of "blight" condemnations continue to this day, though on a considerably lesser scale than at their height in the 1950s and 1960s. I go over the relevant history in more detail in Chapter 3 of my book.
While the goal of these massive condemnations was to promote economic development, in most cases they destroyed more economic value than they created. One of the main lessons of development economics is that secure property rights are essential to promoting investment, entrepreneurship and growth.
The widespread destruction and suffering caused by Berman had a crucial racial dimension. Almost all the people displaced by the project it upheld were poor blacks. African-Americans were also a large majority of the people displaced by later urban renewal takings. Often, local governments deliberately targeted them. Thus, James Baldwin famously denounced urban renewal as "Negro removal."
It is worth noting that, when Berman was decided in 1954, Washington, DC was still a segregated city in which the black population had virtually no political power, and was under the near-total domination of white authorities. The same Court that decided Berman had also decided Brown v. Board of Education a few months earlier, as well as Bolling v. Sharpe (which struck down racial segregation in public schools in the District of Columbia). The justices were properly sensitive to the racism underlying the policies at issue in Brown and Bolling. But they turned a blind eye to it in Berman.
Legal historian Wendell Pritchett effectively summarizes the racial element of the case:
The role of blight terminology in restricting racial mobility has also been under-appreciated by legal scholars. Blight was a facially neutral term infused with racial and ethnic prejudice. While it purportedly assessed the state of urban infrastructure, blight was often used to describe the negative impact of certain residents on city neighborhoods. This "scientific" method of understanding urban decline was used to justify the removal of blacks and other minorities from certain parts of the city. By selecting racially changing neighborhoods as blighted areas and designating them for redevelopment, the urban renewal program enabled institutional and political elites to relocate minority populations and entrench racial segregation. Berman was decided just six months after Brown v. Board of Education, but while Brown receives more attention, Berman was equally influential in shaping American race relations. The urban renewal program played a crucial role in redistributing urban populations and creating additional obstacles to efforts to achieve integration.
Why did the Supreme Court ignore the racism underlying the takings in Berman and the vast harm the decision predictably went on to help cause? Douglas and most of his colleagues were racial liberals who understood the horrible injustices of segregation, and did what they could to end it in other contexts, most notably in Brown.
I think their blindness was caused by a combination of denigration of property rights and faith in government planning. During the Progressive and New Deal eras, most jurists and legal scholars came to believe that property rights deserved little or no judicial protection, and that they were a tool of the wealthy for oppressing the poor. In addition, this period was characterized by great faith in the power of "scientific" government planning to solve social problems, including - in this case - rehabilitating slums and "blighted" neighborhoods. This faith in expert planning comes through in several passages in Douglas's opinion, such as the one where he analogizes urban planners to doctors treating a disease: "The experts concluded that, if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole." This, in Douglas' eyes, is what justified the use of eminent domain to seize even property that was not blighted, such as Mr. Berman's store.
Just as laypeople should not second-guess the professional judgment of a surgeon performing an operation, so courts should not second-guess the "scientific" judgment of urban planners. The latter had to remove "diseased" neighborhoods to ensure the health of the city, much like the former had to cut out diseased tissue in order to cure their patients. As Prof. Pritchett explains in his article on this topic, such medical terminology was commonly used to justify destruction of neigbhorhoods and forcible displacement of minority populations.
While we today cringe at these medical analogies, New Deal-era suspicion of property rights and confidence in government planning are a big part of the reason why most scholars and legal commentators - particularly those on the left - have continued to accept both Euclid and Berman. In recent years, however, there has been growing cross-ideological recognition of the vast harm caused by exclusionary zoning, especially to racial minorities. The Kelo decision highlighted the similar dangers of unconstrained use of eminent domain, and that decision generated widespread opposition on the left, as well as the right.
These trends have not, so far, caused a widespread reconsideration of Euclid and Berman. But I hope that might change over time. At the very least, law professors should give these decisions more prominent attention in their courses, and start treating them as contestable, rather than obviously right (the latter is still a common attitude in the academy, though not nearly as much so as even a few years ago). Most introductory constitutional law courses do not even include Euclid and Berman, though Euclid is often covered in intro courses on property law. That exclusion, too, should be reconsidered.
Few major Supreme Court decisions are as poorly reasoned as these two or have caused so much harm to enormous numbers of people, much of it inflicted by racist policies targeting minorities. They would be worthy additions to the anticanon of constitutional law.