Eminent Domain – Isn’t This America??

Posted on February 2nd, 2006 in Commentary by EngineerBoy

While I’ve never liked the idea of eminent domain, I’ve been able to make an uncomfortable peace with it. Until recently, eminent domain defined a right held by governments and municipalities to forcibly take ownership of property for a fair price regardless of the owner’s wishes to sell, as long as there was compelling case that “public use” would serve the greater good.

For example, suppose a city decided to build a park in a certain area, and all but on of the landowners agreed to sell to the city for a negotiated price. The last landowner, however, holds onto his empty parcel of land that he bought as an investment and demands a price that greatly exceeds recent market prices. It’s clear, in this case, that the landowner is trying to stick it to the government, knowing that he has them by the short ones as the last holdout for a major project. So, the government claims the land under eminent domain and pays the landowner the going rate.

In a less clear-cut example, suppose the evil landowner above was replaced with an 80 year old widow living on the land in a house she’d lived in for the last 50 years. Now it’s not so clear-cut, and it was this type of situation that caused me to have intellectual problems with eminent domain. Who is qualified to weigh the need for a community park against a lifetime of ownership and memories? It always felt un-American to me that cases like this often ended up in the forcible condemnation and claiming of the land, followed by the widely televised bulldozing of the poor old widow’s lifelong home.

However, while there were cases in the past that I would consider abuse of eminent domain, they were nothing compared to the new definition of eminent domain provided by the Supreme Court.

Now, based on the recent Supreme Court ruling (Kelo v. the city of New London, Conn.), the definition of eminent domain has been expanded so that “public use” now includes the ability to forcibly take land and give it to private developers who assert that they can create a material improvement for the community, such as more jobs, bigger tax base, etc. So in the past, eminent domain could claim land for public use such as parks, roadways, etc. Now public use includes taking privately owned land and giving it to private companies to develop more profitable enterprises with the land.

Justice Sandra Day O’Connor wrote the principal dissenting opinion, where she stated, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” She also stated that this decision eliminates “any distinction between private and public use of property — and thereby effectively [deletes] the words ‘for public use’ from the Takings Clause of the Fifth Amendment”.

Justice Clarence Thomas wrote a separate dissenting opinion where he says that the court is changing the interpretation from being for “public use” to being for “public purpose”, and sums up that change by saying “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use’.” He then further stated that “Losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

I couldn’t have said it better than Justices O’Connor and Thomas. This decision will *clearly* benefit large, wealthy companies…who are the only companies with both the capital to stage an “urban renewal” project and also the political clout to cloud the judgment of local officials into stealing land from rightful owners in the name of “improvement”.

Isn’t this America? I got to the land first, I own it, I’m putting it to good use, you don’t need it for “public use”, so keep your goddam hands off of it! I don’t care that Pfizer wants to expand their plant, I was here first. Don’t you remember kindergarten? No cutting in line! Also, I’m not trying to hold out for more money like some carpetbagger…I don’t want anything from you, other than for you to leave me alone. I believe myself to be a reasonable man, but this issue gets me so riled up that I’m not sure what I’d do if somebody tried to take my home and give it to Wal-Mart. I might end up on CNN in some kind of stand-off. And I consider myself not only reasonable, but VERY reasonable. I fear for the repurcussions when a case like this involves less reasonable people.

The one and only positive aspect of this case is that the majority opinion contains language stating that this ruling does not preclude governmental entities from enacting laws to restrict this type of eminent domain. Many state legislatures are already considering legislation to restrict eminent domain, however my hopes are very low. We are asking governments to restrain themselves from increasing their tax bases. Not only that, but whispering in their other ear are huge developers filling their heads with tails of marina$, resort$, spa$, shopping center$, and office building$.

I wonder who will win that argument?

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