Eminent Domain and Controversy
Eminent Domain is among the most controversial and hotly debated topics in relation to real estate and constitutional law. From the Dakota Access Pipeline, to the landmark 2005 Supreme Court case of Kelo v City of New London, eminent domain never escapes unscathed & unscrutinized. One might question why there is such debate over the issue, and the answer is muddied with decades of analysis and the redefining of its purpose. Eminent domain is a necessary element for government to provide for the common good, but through decades of expanded use, it now stands as a symbol of government overreach, and it must be redefined to fit the narrow scope as originally designed by the Founding Fathers. In order to understand why eminent domain must be revisited under a microscope, one must first understand the following: the history and intended purpose of eminent domain, the implications of differing political philosophies on how it is defined and used,
Eminent domain is defined as, “the right of a government or its agent to expropriate private property for public use, with payment of compensation.” (Dictionary.com, 2018) Eminent domain as a limited institution of the government, and the right of individuals to compensation, finds their roots in the natural law movement, with Grotius first coining the term. (Lenhoff, 1942) The idea that government may only take land if it benefits the entire public, and must provide just compensation, was revolutionary at the time. Since government’s inception, it was always assumed government had absolute sovereignty over the land, and could take one’s property for whatever reason, and it was not morally or legally obligated to compensate you. The pioneers of the natural law movement sought to put strict limitations on this institution in order to prioritize private property rights, thus establishing the commonly-held idea of today that one must be compensated if his property is taken. This idea carried over into the law that those in the United States and around the world enjoy today, knowing there will at minimum be some sort of fair trade if their property is confiscated for the public good. In the United States constitution, eminent domain is found in the fifth amendment, where it states, “..nor shall private property be taken for public use, without just compensation.” (U.S. Const. Amend. V) This phrase did not establish eminent domain for the government, as it was already implied the government had that authority under common law, it simply limited its scope. To put it simply, eminent domain in the United States allows the government to use its authority to forcefully take possession of private land against the will of the owner, so long as the owner is properly compensated and the purpose of taking the land was for public use and the common good. The clause did not come without debate amongst the Founding fathers, with individuals such as Thomas Jefferson arguing for the complete abolition of eminent domain, and advocated instead for allodial ownership. James Madison was able to find common ground with Jefferson by allowing eminent domain only in cases where it is necessary for the common good, and so long as the owner is properly compensated. (Jefferson, 1774) The intent behind eminent domain was to allow government to take possession of private land in situations such as using a rancher’s land during war, accessing an important port, or to build a courthouse in the middle of the town square. In modern times, eminent domain is seen frequently to be used for the purpose of building or expanding roads, running electrical equipment above or underground, water and gas pipelines, building waterways, and much more. All these situations are seen to reasonably fall under the idea of public use. Without eminent domain, governments would have a great deal of difficulty in accomplishing tasks for the public good. For example, if an individual owned a great deal of land between the L.A. powerplant and a small town just east of it, the State of California would need to figure a way to get power to the small town from the L.A. powerplant without violating the individual’s right to his land. The State could offer a tremendous amount of money to the individual, but if he turned it down, they would have no choice but to either go around or abandon the project altogether. With eminent domain, the State may see the issue as being for the common good of the public, and take possession of a certain part of the individual’s land in order to provide power to the small town. In that scenario, a relatively small action is the detriment of one individual, but to the benefit of thousands. While one must be careful in using such thinking, most people would view that use of eminent domain as perfectly reasonable and well within the scope of its intended purpose. Thus, without imminent domain, it would be essentially impossible for government to accomplish the majority of its tasks.
In addition, while eminent domain may be used for the public good, there is debate over when it may be acceptable to employ. Granting government the authority to forcefully take private property, even though the owner is compensated, can be profoundly troublesome. Firstly, because the definition of “public good” varies greatly depending on whom one asks. For instance, a left-leaning city council may condemn a row of houses to build a public park, providing a space of tranquility, and bettering the air quality for the public. A right-leaning city council may condemn a portion of a rancher’s land in order to run an oil pipeline through it, thus providing jobs and economic opportunity for the general public. The reasons behind these views are rooted in deep philosophical convictions than cannot easily be disputed. This became evident in the Supreme Court case of Kelo v City of New London. In that case, the Supreme Court, by a ruling of 5-4, expanded the definition of “public use” to include certain aspects of economic development that were previously thought to be outside of the realm of eminent domain. Before the ruling, eminent domain was intended to mean exclusive government ownership, meaning that a government could not take one person’s land and eventually give it to another. The City of New London sought to do exactly this, by taking the land of multiple home owners and then handing it over to a private, nonprofit organization, who would develop it for a corporation. The homeowners, led by Susette Kelo, sued the city, arguing that “public use” did not include giving property to another private entity in order to entice a corporation to establish its business on the land. This, Kelo argued, is nothing more than taking land from the poor and giving it to the rich in order to upgrade the property. The property would quite literally not be available for public use because it be owned by a private organization. On the flip side, The City of New London argued that their town was in economic shambles and, by giving land to a corporation, it would bring jobs and money to a community that much needed it. They also argued that “public use’ did not exactly imply physical use of the property by the public, but rather than the entire public may benefit from how the land is used. These two arguments represent vastly differing views on what “common good” and “public use” means, and further demonstrates why the issue should be revisited. Justice O’Connor perfectly described the problem with the latter view when writing her dissenting opinion, stating, “all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.” (Kelo v City of New London, 2005)