Eminent domain as enclosure movement: the privatization of law under neoliberalism

Law is a means to an end. The state has always claimed it uses law as a tool to promote social order and progress (the Brazilian National Flag is an example). The use of law to force social change to facilitate capital accumulation for elites in society flies in the face of what the takings clause is supposed to stand for. This research examines the connection between economic development and public good. It focuses on takings because takings lie at the intersection between economics, politics, and social relations. Takings are justified by necessity and public good, but the claim isn’t genuine. Takings condone displacement and cause harm. State-authorized condemnation juxtaposes civic duty with social obligation, ownership with license and privilege. The thesis developed here is the state is pushing the law of takings toward the satisfaction of private interests. To that end the public use concept was expanded. Kelo v. City of New London (2005) holds economic development is a public use and in making that fallacious claim the case has ruptured takings law. Public use shouldn’t be about private gain. Property should be creative and is when it facilitates productivity, but it’s destructive if it erodes personal autonomy. The state claims it promotes social good when it reorders uses, but the claim is false. Instead the state achieves an air of legitimacy, offering a sound rationale for acts of displacement and uses law to support the claim it promotes public good. If an individual doesn’t want to part with her property she shouldn’t be forced to do so. Taking is use of state power to accomplish ends that can’t otherwise be achieved. Taking is a lawful means to displace to benefit private interests. The proof of this is in the pudding of the transformation of law between Berman v. Parker (1954) and Kelo v. City of New London (2005). Berman (1954) required blight. Kelo v. City of New London (2005) eliminated that requirement. This thesis explains how law and state are captured by private interests.