Eminent domain refers to the power of the federal and state governments to appropriate private property for public use. When property is taken, the government must pay the private property owner “just compensation,” which is generally fair market value for the property. Typical examples of eminent domain use include appropriation of private land for highways, military installations, schools, water supply pipes or canals, and airports.
The greatest government document in the world, the U.S. Constitution, provides the federal government this authority in the 5th Amendment, which states in the relevant part that “private property [shall not] be taken for public use, without just compensation.”
So is eminent domain ever okay? I think so. Even the least-governed, hardened bastion of freedom (oh if it still existed here in America), needs some infrastructure for the benefit of the public. Public roads, rather than private roads with excessive tolls, seem to me to benefit the public. Fresh drinking water and a sewer system to serve populated areas, as well as one major airport for a populated region, seem to me to benefit the public.
However, as with every other power granted to the government, it has gotten way out of hand. For most of our nation’s history, the U.S. Supreme Court ensured that eminent domain was used solely for purposes that truly benefited the public (i.e., highways, military bases, and other uses necessary to the basic operation and defense of modern society). However, over the past several years the Supreme Court, as usual, has abandoned the principles of federalism and liberty, and turned accomplice and apologist to an all-powerful government. It has sat on the sidelines while the doctrine of eminent domain evolved from a limited, necessary evil for a society of private property owners, into a tool of almost unlimited strength that benefits not the public — but rather the special interests — that influence or control government.
The 2005 Supreme Court case Kelo v. City of New London, 545 U.S. 469, illustrates how far the original justification for eminent domain has strayed. The facts of the Kelo case are as follows.
- In 2000, the Connecticut city of New London approved a development plan that was expected to create several thousand jobs, provide the city with increased tax revenues, and bring new life to a city area that had been in severe economic decline.
- The development plan included a waterfront hotel, a riverside walkway, an office and retail complex, and residences that would likely be homes to highly paid professionals working at a nearby drug company.
- New London purchased outright a large number of homes in the zone that would be redeveloped. It used eminent domain to take the remainder properties whose owners did not want to leave their homes. The homes that were taken were not blighted or in poor condition. Some were occupied by proud owners and some were investment properties.
So let’s review here. A city wanted to take the private homes of respectable citizens and turn a community into a tax-creating area complete with amenities (hotel, park, retail center), and homes that benefited a nearby drug company.
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For the Supreme Court, it was no problem. In a 5-4 decision the court ruled that “public use” under the 5th Amendment actually means any rational government program that has a public purpose (even if it merely benefits a government financially). In other words, the court now allows the government to determine what is good for the public, rather than subjecting eminent domain to a more rigorous analysis demonstrating a true public use.
This is not good news. Here’s a nightmare scenario that recent Supreme Court jurisprudence would seem to allow. Recently, President Obama expressed concern over the tragic flood of illegal immigrant children through the border and into Texas. He proposed $3.7 billion to fund the same failed policies and practices of the past 20 years: more detention facilities, more border control agents, and more federal judges. Thinking outside the box, perhaps he could use eminent domain. Currently, there are 14 Texas counties along the border with Mexico. Why not use eminent domain and seize a couple, say Brewster and Cameron counties, and house the illegals there? After all, wouldn’t that be good for the government and perhaps even (according to supporters) benefit the public?
This may sound extreme, but if the government can take your property solely to benefit itself, beware.
Our Constitution and Bill of Rights are under constant assault from liberals, the federal courts, and even some Republicans. Whether it be warrantless searches, bans on gun ownership, or taking your property, it’s time to realize our freedom is under unprecedented attack.
Do you believe eminent domain is ever OK? Let us know in the comments section below.