You remember Berman v. Parker, don’t you? Of course you do. Why else would you be reading this blog? But in case you are new to this stuff, Berman v. Parker was the 1954 U.S. Supreme Court case that approved large-scale modern urban renewal, and in the name of “slum clearance” allowed the taking of unblighted properties so the renewal project could proceed on an area-wide basis for the convenience of planners who would not have to bother with establishing slum conditions for each parcel they sought to take by eminent domain. Do reread the court’s Berman opinion (by none other that Justice “Wild Bill” Douglas). There, he waxed eloquent about the plight of slum dwellers, and about the wonders that redevelopment would bring to the area by eliminating slum conditions.
Of course, this was nonsense which since then has become a staple of judicial prose in eminent domain right-to-take cases. The Berman project was supposed to reserve at least one-third of the new dwellings to be built on its site as low-cost housing renting for $17 per room per month. But as soon as the Supreme Court gave this project its imprimatur that provision in the redevelopment law was deleted. The poor slum dwellers got no benefit from the project. Some 23,000 households were destroyed, and the residents were bulldozed into other, worse parts of the District of Columbia, where they had to pay higher rents for worse dwellings. If you want the whole sad, sordid story, do read an article by Amy Lavine, entitled Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010).
We know a lot of this stuff first hand because your faithful servant lived in that area, just north of Fort McNair, during the Kennedy administration — actually in one of those modern, glass and aluminum townhouses depicted in Lavine’s article on p. 463. By then, ten years after Berman, the entire area was an empty, razed wasteland, save only a couple of large apartment building that redevelopers put up along with a small shopping center and the aforementioned glass-and-aluminum townhouses, plus two historical buildings, two restaurants, and a pizza joint. The rest was wasteland.
What eventually replaced the razed buildings was a bunch of sterile, boxy structures that had all the warmth and charm of Stalinist architecture, only without the ornamental spires. Of course, the redevelopers weren’t in it for their health, and rents in the new buildings rose so high that in a few years they inspired a rent strike by their affluent tenants. Joanne Lublin, Tenants’ Revolt Hits A Luxury High Rise; Target if FHA, Wall St. Jour., Aug 13, 1969, at p. 12.
All this is merely prologue to the meat of this post. We learn from today’s N.Y. Times that — guess what? — far from being the wondrous new habitat envisioned by Justice Douglas, the Southwest/Berman redevelopment project turned out to be — are you ready? — “a crushing failure.” Eugene L. Meyer, Contrite Over Failed Urban Renewal, Washington D.C. Refreshes a Waterfront, N.Y. Nov. 18. 2014, at p. B10. Go to http://www.nytimes.com/2014/11/19/realestate/commercial/washington-dc-refreshes-a-waterfront.html?ref=business (mostly a puff piece about the wonders of the new re-redevelopment of the area).
Now we are told in breathless prose that the new, improved Southwest Washington area will be — what else? — “a great world class destination” and would be “as has been widely acknowledged” a “notable achievement.” But to give credit where credit is due (however little of it) that Times acknowledges that what the Berman project did was “to [give] rise to the pejorative term ‘Negro removal’ applied to urban renewal and derived from this failed experiment, and destroyed a viable commercial waterfront.”
But the greatest harm that Berman did was not the failure of one grandiose project, nor even the harm done to the poor, indigenous African-American inhabitants of the area. Rather it was the harm done to the law that in the hands of Justice Douglas and his merry men established a precedent that destroyed any semblance of meaningful judicial review of eminent domain takings in spite of the constitutional limitation on takings requiring “public use.” As Professor Ellen Frankel Paul put it in her book Property Rights and Eminent Domain (1987) at p. 91,
“With one mighty obfuscation, Justice Douglas, in a decision that confused the law almost beyond redemption, dealt a devastating blow to the public use limitation upon what government can constitutionally take.”
The obfuscation of which Professor Paul spoke was the willful confusion of the police power (usually a non-compensable regulatory power used to eliminate public harm) with eminent domain (inherently an acquisitory, compensable expropriative power used to achieve public good). It was that confusion that led to such judicial absurdities as the Oakland Raiders case in which — who else? — the California Supreme Court held that the “public use” limitation of the 5th Amendments permitted a city’s taking by eminent domain of an NFL franchise of a professional football team in order to prevent its owners from exercising their constitutional right to travel and moving their team to another venue. And of course it eventually led to the wholesale takings of property for the benefit of favored private businesses (Dean Starkman, Take and Give: Condemnatioon is Used To Hand One Business Property of Another, Wall St. Jour., Dec. 2, 1998, at p. A1). Eventually, it led to the wretched 2005 Kelo decision that by a 5 to 4 vote allowed the taking of an unblighted lower middle class neighborhood in New London, Connecticut, merely in an effort to generate more revenue. And as you may recall, it didn’t accomplish that either. Kelo proved to be another total and complete failure — the 90 acres taken in 2002 at an eventual cost of over $100 million is sitting empty until this day, generating no taxes and doing no one any good.
The moral of this story is that the Berman case mangled the law and laid the foundation for inflicting untold injustice on people all over America. By the end of the 1960s, redevelopment displaced hundreds of thousands of urban dwellers annually and was instrumental in contributing to the decline of urban America. See Gideon Kanner, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1550.
Follow up. After putting up this post, we came across this statement in the Washington Business Journal on line:
“Until recently, however the Southwest Waterfront area — largely cut off from downtown Washington by an elevated freeway — languished. The Waterside Mall, the center of Southwest commerce, deteriorated. Southeastern University closed. L’Enfant Plaza remained an imposing concrete jungle.”