The Great Government Land Grab: Origins and Definitions

On June 22, 2005, the Supreme Court voted five to four in a case that will expand the power of governments to invoke eminent domain to make way for commercial developments. I believe that this is a dangerous expansion of one of the most sweeping powers held by the state. This is not a simple issue, and I believe that this needs a real in-depth look to probe the contours of this new development and also the ideas of public good, property ownership and the power of the state over both. So, to that end, I will endeavor to explore this topic in three parts. First, definitions and the history of eminent domain in the United States will be explored. Second, the political philosophy of property ownership and the power of the state to seize private property will be discussed. Lastly, this recent decision by the Supreme Court in Kelo v. New London will be probed in depth and some conclusions will be drawn.

Eminent domain can be defined, at least for the United States, as the power of the state to appropriate private property for its own use without the consent of the owner. This power is usually used when it is necessary to acquire real property to complete a public project such as a road and the owner of the property is unwilling to sell it. When this power is invoked, the owner is given "just compensation" for the property, but it is taken from them all the same. As one may imagine, this power of the state over private property is vast and troublesome.

The idea of eminent domain is embedded in the legal systems of most of the English speaking world, where the standard for the law is that of English common law, which itself has its origins in a mixture of Germanic tribal law, Anglo-Saxon legal tradition and some Roman jurisprudence. The United States and its legal system is based, in large part, on English common law and it was this legal tradition that was in the minds and education of the authors of the U.S. Constitution.

The power of eminent domain is laid out in the Fifth Amendment to the U.S. Constitution which, as part of the Bill of Rights, was passed by the U.S. Congress and ratified by the states on December 15, 1791. The Fifth Amendment, most famously known for the right of the accused in trials to not testify against themselves, states:

• No person shall be held to answer for a capital, or otherwise infamous crime,unless on a presentment or indictment of a Grand Jury, except in cases arisingin the land or naval forces, or in the Militia, when in actual service in timeof War or public danger; nor shall any person be subject for the same offenseto be twice put in jeopardy of life or limb; nor shall be compelled in anycriminal case to be a witness against himself, nor be deprived of life,liberty, or property, without due process of law; nor shall private property betaken for public use, without just compensation.

It is the last lines of the Fifth Amendment that establish the power of eminent domain. What immediately springs to mind here is how to define "public use" and "just compensation." Just compensation has come to mean that the owner must be paid prevailing market prices for the seized property. What is even more troublesome is how to justify that the taken property will be put to "public use."

In The Federalist Papers, the series of articles published by Alexander Hamilton, James Madison and John Jay to convince the people of New York to ratify the Constitution in 1787-1788, the public good in relation to property is discussed. In Federalist Number Twelve (written by Hamilton in 1787), the idea that the government exists to benefit the people and encourage industry is put forth as the government's responsibility in fostering the public good. While Hamilton does not suggest any sort of state industry, he does argue that it is the responsibility of government to collect taxes to build and improve such things as roads, ports, bridges and other infrastructure that will benefit all the people. He clearly was not advocating that the government have the right to seize land to sell to private interests, nor does he argue explicitly that economic enterprises necessarily form part of the "public good." It was clear from the start, therefore, that this power needed to be limited to a narrow definition so that it would not become abused by government. Well, government is phenomenally good at abusing power and redefining terms to change the rules. That is the story of the years between the writing of the Constitution (1787-1789) and the present.

The case law that is cited most often in eminent domain cases is that of Berman v. Parker, 348 U.S. 26 (1954). Decided by the U.S. Supreme Court, this landmark case redefined the terms in the Fifth Amendment, namely "nor shall private property be taken for public use, without just compensation." The case set the precedent that private property could be taken for a public purpose with just compensation. This decision opened the door for the notion that private property that is in need of improvement or that is in poor repair can be condemned (taken by eminent domain) and this serves the public purpose of economic development.

The last eminent domain case to come before the Supreme Court before Kelo v. New London was Hawaii Housing Authority v. Midkiff 467 U.S. 229 (1984). In this case, the definition arrived at in Berman v. Parker was expanded beyond the right of governments to take property that is blighted. It affirmed the right of government under eminent domain to take land for "public benefit," not strictly for use by the public. This decision, which was 8-1 with Sandra Day O'Connor writing the majority opinion and Thurgood Marshall abstaining, set the stage for the development of eminent domain decisions and actions since. As can be seen, these court decisions have greatly widened the ability of the government to take private property for other private uses without the consent of the owner and also without demonstrating the "public use" to which the land ought to go. This has strayed considerably from original understanding of the "takings" portion of the Fifth Amendment.

It is clear, at least to me, that the government redefined the clause to undertake a power and decisions that they are not in the place to make, namely the disposition of private property. Even worse, the government gets into the notion that economic development serves the public good. This is not the place of any government, to redistribute private property to foster financial gain for the now new owners of this property. The economy and private property should and must be the domain of private citizens, free from the heavy-handed incursion of the government. The government needs to stay out of private property and focus on the actual powers given it in the Constitution. Is this realistic? Maybe not, but it does bear mentioning that the government is too powerful, changes the rules to benefit its interests and in many cases ignores the Constitution wholesale. It is the law of the land and applies to everyone, including them. This power places the force of the state over the rights of the individual, a shameful abrogation of the natural rights that government is supposed to be formed to protect.

Tomorrow, we will examine the nature of these rights and the notion that these are rights that no government has the right to deny its citizens.