1Eminent Domain: Affirmative Underviews

1. Andre and Valasquez

2. Procedural bias
3. Rhetoric of blight
4. Economics

1. Andre and Valasquez

Eminent domain by definition presupposes a conception of public use that defines the
limits of the takings power. Such a standard requires the state to make value judgement about
concepts of the good to determine what counts as a public use, and to privilege a single of
conception of the common good as the goal of public utility. Claire Andre and Manuel Valasquez
explain [two ways in which] this is unjust: First, according to some philosophers, the very idea of a common
good is inconsistent with a pluralistic society like ours. Different people have different ideas abut
what is worthwhile or what constitutes the good life for human beings, differences that have increased during
the last few decades

as the voices of more and more previously silenced groups, such as women and minorities

have been heard. Given these differences, some people urge, it will be impossible for us to agree on what particular kind of social systems, institutions,
and environment we will all pitch in to support. And even if we agree upon what we all valued, we would certainly disagree about the relative values things have for us. While a may agree, for
example, that an affordable health system a healthy educational system, and a clean environment are all parts of the common good, some will say the, more should be invested in health than in
education, while others will favor directing resources to the environment over both health and education. Such disagreements are bound to undercut our ability to evoke a sustained and

widespread commitment to the common good. In the face of such pluralism,

efforts to bring about the common good can only lead to

adopting or promoting the views of some, while excluding others, violating the principle of
treating people equally. Moreover, such efforts would force everyone to support some specific
notion of the common good, violating the freedom of those who do not share in that goal, and
inevitably leading to paternalism (imposing one group's preference on others), tyranny, and oppression. Finally, [Second,]
appeals to the common good are confronted by the problem of an unequal sharing of burdens.
Maintaining a common good often requires that [some persons] particular individuals or particular groups bear
costs that are much greater than those borne by others. Maintaining an unpolluted environment, for example, may require that particular firms that pollute
install costly pollution control devices, undercutting profits. Making employment opportunities more equal may require that some groups, such as white males, sacrifice their own employment
chances. Making the health system affordable and accessible to all may require that insurers accept lower premiums, that physicians accept lower salaries, or that those with particularly costly

diseases or conditions forego the medical treatment on which their lives depend.

Forcing particular groups or individuals to carry such

unequal burdens for the sake of the common good, is, at least arguably, unjust. Moreover, the prospect of having to carry such heavy
and unequal burdens leads

[and will lead] such groups and individuals to resist any attempts to secure common

goods. Eminent domain links into this problem with the concept of a common good in

particular since it imposes disproportionate burdens on a small group of property owners.

This is an on-face reasons to affirm, since the procedural requirements of eminent domain
inherently privilege some viewpoints over others, failing to give each citizen the equal treatment
they are due from the government and justifying further violations of rights.

2. Procedural bias
For eminent domain to be even potentially just, the takings process must contain

mechanisms to ensure that all interests are fairly represented, since if some peoples interests are
privileged over others those at the bottom will never be given their due. Thus, the neg has a
prima facie burden to prove that the takings process isnt biased in favor of some parties to the
taking. Unfortunately, it is [in two/three ways]:
First, large firms have disproportionate power in both the legislative and the legal arenas.
They have more money to lobby for their causes, to hire lawyers, and to sustain lengthy appeals.
Even non-profits like the Institute for Justice lack anything like the resources of a large firm like
GM, meaning that the takings process will always favor the firm seeking the taking over
individual landowners.
Second, property owners effected by eminent domain actions are unable to effectively
organize and make their voices heard politically. Thus, even the decisions well-intentioned and
unbiased government bodies will not fairly represent their interests. Stephen Jones writes:
Unlike the normal political process, in which various interests compete within a representative framework, dispossessed property
owners are unable to organize effectively to challenge condemnations. This fact is attributable to
both the transient nature of the condemnation and the condemnee's veritable isolation. Certainly, Vera
Coking and her neighbors have no galvanizing basis for a long-term alliance. Furthermore, even if a condemnee could organize and lobby for her cause, she will lack the wherewithal to compete

with powerful special interests such as Trump.

In addition, most politicians favor economic development and will

probably vote in favor of a development project at the expense of a dispossessed few. Thus,
since its easier for firms to coordinate their political efforts, the takings process structurally
privileges them over landowners.
Third, the takings process is procedurally biased against the poor and racial minorities.
Donald Kochan [of the 6th Circuit Court of Appeals] writes [in the Texas Review of Law and
Politics, 1998, that]: Slum clearance under the condemnation power disproportionately affects
the poor, who are more likely to live in these neighborhoods and be ousted from their homes by

clearance. Similarly, Bovard contends that historic preservation statutes limiting property uses have become
a tool for racial discriminationa strategy to drive up housing prices and drive out poor people.
He also illustrates how these limitations on property rights have impeded religious freedoms...

As one example, Bovard reported that the Department of

Housing and Urban Development concluded that an Arlington, Virginia decision to designate a
fifty- block black neighborhood as a historic district was specifically intended to displace lowand moderate-income blacks from their homes in order to upgrade properties [and] ... to promote the rise of property values and
attraction of new residents. Thus, eminent domain deprives economically and racially
marginalized groups of their due.

3. Rhetoric of blight
The use of eminent domain to promote private enterprise is unjust since its steeped in the
racist discourse of blight. Pritchett in 03: To secure political and judicial approval for their efforts,
renewal advocates created a new language of urban decline: a discourse of blight. Blight, renewal proponents
argued, was a disease that threatened to turn healthy areas into slums. A vague, amorphous term, blight was a rhetorical device that

enabled renewal advocates to reorganize property ownership by declaring certain real estate
dangerous to the future of the city. 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 t
o efforts to achieve integration. Thus, the use of eminent domain to promote private enterprise
is rationalized through rhetoric that masks racial bias, and serves as a tool for discriminatory
redevelopment policies, making it unjust.

4. Economics
For the use of eminent domain to promote private enterprise to ever be just, it must
minimally be effective since if it fails to promote private enterprise it violates property rights
without adequate justification, violates the states obligations to its citizens by harming their
material well-being, and exceeds the just limits of state power by using a power for something
other than its democratically sanctioned purpose. Thus, if the neg cant prove that eminent
domain actually promotes private enterprise, you vote aff on face. Unfortunately for him/her,
s/he cant for several reasons:
(1) Takings harm the economy since it makes firms spend money on gaining political
influence rather than production and research. Since firms have to make sure that their land
doesnt get taken and that they benefit from takings as much as their rivals to stay competitive,
they have to waste money on zero-sum political games.
(2) Takings harm the economy since they advantage the most politically powerful firms

instead of the most efficient and economically productive. This destroys market mechanisms that
maximize efficiency.
(3) Cities have incentives to sell land to firms at less than the market price to keep them
from going elsewhere. But this promotes bad investments since if firms dont pay full price for
the land they dont need to recover its market value and can use it inefficiently without losing
money.
(4) Takings force condemnees and firms to waste money on huge court battles. Since
lawsuits arent economically productive, this harms growth.
(5) Takings destroys competitive pressures towards efficiency. Takings to promote private
enterprise always favor the larger firm since they can bring more resources and hire more people.
Thus, takings make large firms more secure against competition from small ones, lessening
incentives to improve efficiency to stay ahead.
(6) Takings promote wasteful investment. Since takings are proposed publically and go
through a process of political debate as well as a required negotiation process, landowners know
that their land will be taken well before it is and have incentives to overinvest in it to increase
their compensation. Calandrillo in 03: One of the primary detractions of government payment of just compensation outlined above is that
guaranteed state-based reimbursement for takings distorts a landowner's decision regarding whether or
not

to improve her property. Since she knows that the government must pay her for the full and fair market

value of her land (and any improvements to it), she may often proceed with renovations where
they would clearly be socially undesirable. Recall the example discussed in Part III.B.1: [For instance,] a $ 1 million
renovation would yield an increase in property value of $ 1.5 million, but would be demolished
with probability equal to 50%

if the [taking]

government

went forward with a potential public transportation project.

(7) Since takings only happen when landowners wont sell for the market price, firms

would pay more for the land on the market. Further, lots of firms can compete for valuable land
on the market, driving up prices. This extra spending would put more money into the economy,
boosting growth, and would ensure that the land is put to the most efficient use since a firm
would only pay the higher price if it expected to make a greater profit.
(8) Since just compensation doesnt account for things like moving costs and lost
business ties, cities dont bear the full cost of takings and thus have incentives for inefficient uses
of the takings power. Epstein notes: To start with the obvious point first, the conscious decisions of the Supreme
Court to short-change the compensation formula means that government officials always face the
wrong set of prices every time they resort to the condemnation power, even when it is undoubtedly for public use. Here is a simple numerical
example of how it plays out. The total losses inflicted on the private owner are $ 10,000. The gain to the
municipality and its other citizens is $ 8,000. The price required of the state is only $ 5,000. The rational
government official compares the last two numbers and charges ahead. Its $ 3,000 gain (the value of the property in public
hands less the condemnation price

wholly

) is duly registered, and the $5,000 loss to the owner (total loss less condemnation proceeds received) is

ignored. The law treats a transaction that creates a net social loss of $ 2,000 as though it created a net social gain of $ 3,000.
(9) Takings destroy incentives for good investment in two ways: First, firms are afraid of

having their land taken and have less reason for long-term investment in it. Second, firms are
afraid of losing returns on their investment to state-favored competition. Ackerman in 04: Although
seemingly beneficial,

[Eminent domain], whereby the city views itself as the honest broker, destroys the supply-demand market. The

basic standards of supply and demand recognize that market prices diminish when demand is
artificially limited. Entities have no interest in seeking out properties and creating a market for viable
development

acquisition

so long as the reasonable investor fears a third-party developer will obtain City assistance, be it

by condemnation or tax abatements not available to the first developer.

(10) Forced dislocations of large numbers of people harm the economy by disrupting

market equilibria and creating unemployment, harming long-term growth. Cities have no reason
to take these harms into account since they dont have to deal with the people theyre displacing.
(11) Takings harm growth by increasing state spending and thus taxes. The harms of
taxation will always outweigh the benefits of takings on timeframe, since they happen
immediately, and on scale since they effect everyone. Cities wont take them into account since
the benefits are more concentrated and visible, making them more politically important.