The Public Use of Reparations: How Land-Based Reparations Can Satisfy the Public Use Requirement of the Takings Clause

By Jack Davis. Full Text.

After the horror of slavery, African Americans faced another obstacle to equality. Their lack of property created an intergenerational wealth problem that persists today. A Congressional act of reparations designed with housing in mind could strengthen our nation’s moral fabric while supporting economic activity for beneficiaries both in the present and future. Though historically distinct, a similar program in South Africa can offer lessons for land or housing-based reparations in the U.S.

Such an act of reparations would implicate the Takings Clause of the Fifth Amendment which restricts the government’s ability to use its eminent domain power for projects for a “public use,” even with proper compensation. The public use requirement represents a core limitation on the government’s ability to manipulate property and individual rights, yet the substance of the public use requirement notoriously evades clear definition. The Supreme Court has maintained a posture of deference to legislatures when evaluating the public use requirement. However, more stringent conceptions of the public use requirement exist, such as a requirement that a market failure be shown before the government may authorize eminent domain.

This Note argues that land-based reparations can satisfy the public use requirement as a matter of constitutional law. Under a deferential analysis, land-based reparations would likely be upheld under Hawaii Housing Authority v. Midkiff. In the first instance, this Note argues that a reviewing court should retain the deferential approach when evaluating an act of land-based reparations. This Note then examines the political theory behind the more stringent and substantive public use theories and argues that an act of land-based reparations remains capable of meeting the public use requirement under these analyses. The initial conditions that African Americans faced after slavery and the discrimination that followed constitute a market failure worthy of government intervention.