Eminent Domain

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Publisher’s Note

One of the most controversial issues of our time is that of eminent domain, which involves a  difficult balance between private property and the government’s legitimate interests. This issue is as important as it is difficult to answer.  Our authors do a commendable job articulating the political stance of their side of the aisle. We proudly present, side by side, two well argued positions on eminent domain.


The Faireway Staff

The Liberal Argument

Anne Scott Greenberg, University of Virginia

Eminent domain is an issue hotly debated across the United States, raising the  question: “Does the United States government have the right to take private property for public use, even with just compensation?” In Article V of the Constitution, the taking clause states that the government does have the right to take the private property of Americans for public use so long as the state provides just compensation in return. This is not to say that this public use should be misconstrued as private good, but rather serve the needs of the people of whom’s private property is being taken. There has been a longstanding debate surrounding this issue, particularly after the United States Supreme Court case of Kelo v. City of New London (2005). Perhaps the most well-known case concerning eminent domain, it debates whether or not the New London local government and New London Development Center  (NLDC), a private non-profit which aimed to aid the community of New London in building community centers, had the right to seize a homeowner’s private property The Court ruled in favor of the City of New London with a 5-4 vote,  redefining the Fifth Amendment’s public use clause as the public purpose clause. and spurred backlash from citizens and politicians alike, which led to stronger property rights laws. Despite the Court’s close ruling, Kelo v. City of New London continues to uphold the controversial precedent  that the government may seize private property so long as that seizure is based upon a public purpose.

In practice, eminent domain and the Constitution’s “Taking Clause” shows a lack of trust in private citizens’ property holdings, and for good reasons too. It is easy to see how a lack of governmental power could systematically lead to tyranny of the wealthy. Economically speaking, that there is a risk in allowing  wealthy individuals to purchase the most profitable lands as personal property or for investment purposes, because this leaves little behind for public usages. Public parks, schools, libraries, government buildings, and reservations (amongst other public venues) would be nonexistent in a world where eminent domain were constitutionally prohibited. Some may refute this argument by pointing out that there are thousands of uninhabited land across the United States that could serve eminent domain’s purposes . Although this is true, it would be wise to also point out that these sites of untouched  land are not near metropolitan areas, and therefore lack the necessary assets for public usage. The reason that constitutional protections for eminent domain are so important is not just so that the government may expand its own power for arbitrary reasons, but rather so that the government may protect Americans against selfish interest. This was found to be the case in the ruling of Kelo v. City of New London, where  economic interests impeded government intervention  for public purposes. In the system of American government, minorities and lower-income people depend on the availability and receipt of public services more than those who can afford private services. If a government can understand and measure this need and do not give credence to its factuality (or attempt to resolve the problem), they are ignoring the needs of the impoverished.

Another key asset in understanding eminent domain is understanding judicial interpretation from a progressive perspective. The American public and the Court can express its disdain  for a problematic concept through interpretation of the Constitution as per modern standards, demands, and wishes. With respect to Kelo v. City of New London (2005), the Court adopted a progressive constitutional approach that allowed them to interpret interpretation of the “Taking Clause” in a way that accurately represented constituent interests. Since Kelo v. City of New London, 44 projects that are looking to take advantage of eminent domain rulings have been defeated. These projects were not so much in the aid of actual eminent domain’s ideology, but rather another type of selfish attempt by people within a free-market economy. It is easy to understand how these projects were in support of the selfish demands by individuals rather than the good of the public — which eminent domain attempts to further. While some may say that this is not enough for the failures of Kelo v. New London, the ability to take control of a community’s future places power in the hands of people and not just that of government representation — one project gives leeway to activist change, judicial change, and constituent change. This change should then give way to governmental change, in that the responsibility to the American people by the government is to reflect and represent the best interest for the most amount of people. Despite the failure of a Fort – which may have succeeded without the amount of backlash and difficulty surrounding it – and loss of taxpayer money exemplifies the importance of a united community and judicial standards. It is true that not every project with good ideology will succeed, and it is frustrating when good intentions do not result in good outcomes, however, the alternative is a system which aids discriminatory actions against minorities and low-incomes in addition to discouraging public works by the government — federal or local. A possible dissent of eminent domain could be that the purpose of government action is not just adhere to the needs of the people, but also to encourage their individualized autonomy, however, this would be an incomplete approach to the problem of labeling the actual government’s purpose is. Rather than attempting to say that citizens should be encouraged and invigorated in their autonomy by the government, it should be said that a country’s government should protect the rights of its inhabitants.

Perhaps the most vital of all points is the importance of maintaining judicial precedent. Reverence for stare decisis is not to argue that the Court should never overturn past cases if they were interpreted unconstitutionally or in a flawed manner. Rather, it is to say that judicial consistency in respecting past decisions is often more important than changing flawed precedent. Liberals and – conservatives alike,  have Supreme Court cases that may conflict with their understanding of what is constitutionally permissible. Some may get overturned and brought forward again, but it is the people’s job to show the burden of such a change. Often the power and significance of the Supreme Court is lost in its name, and mistaken for their rulings, but it is the judicial precedent and review that gives America its united laws and strength. These are the backbone of our legal system and reverence for our country as a whole, rather than sole blind devotion to local community law. That law is one that gives power to local change, but national change is what makes America an ally to its citizens and its global inhabitants.

The unfortunate truth of any government concerning eminent domain is this: sometimes necessity is unpleasant. Granted, there are required limits to this doctrine and what it can do in America, however, that is the reason why we have local governments. Although eminent domain is not a perfect concept, like everything else, it is subject to the change according to the current desires and needs of the American people. Eminent domain allows for government to protect market interests of the American public, encourages public infrastructure projects, and (in this situation) show how to constructively use discomfort of a scenario to create positive change for constituents. This is the beauty of governmental evolution, constituent interests, and constitutional interpretation.

The Conservative Argument

Audrey Fahlberg, University of Virginia

Property rights have defined American democracy since the country’s founding. After the American Revolution, the Framers drafted a Constitution that would both lay the foundation for a new government and ensure that private citizens could live their lives independent from British rule. In the Constitution, the Framers enshrined an utmost respect for property rights, permitting eminent domain but only in very limited circumstances. The Fifth Amendment explicitly states that “private property [shall not] be taken for public use, without just compensation.” Both the Fifth Amendment and the Supreme Court’s jurisprudence have held that eminent domain is constitutionally permissible. Over time, however, the “public use” clause of the Fifth Amendment has become dissociated from its original meaning. The Court has adopted a rather loose interpretation of the public takings clause that has all but eliminated most previous constraints on eminent domain.

The Court redefined the “public use” clause of the eminent domain provision of the Fifth Amendment as the “public purpose” clause in Kelo v. City of New London (2005). In this case, the City of New London seized the petitioner Susette Kelo’s home and transferred it to a private enterprise so that the land surrounding it could be commercialized. The respondent argued that because the City of New London had recently experienced a period of economic decline, the government should be permitted to transfer Susette Kelo’s private property to private developers so that her land may be put more economically lucrative use. The Court had to determine whether this interpretation of the public takings clause qualified as a constitutional exercise of the Fifth Amendment. In Kelo, the Court ultimately ruled that the government may transfer property owned by a private individual to another private enterprise so long as “use by the public” is the purpose of the taking, regardless of whether or not that purpose comes to fruition. While most people would concede that a railroad or public highway are reasonable justifications for eminent domain, the line becomes especially blurred when the Court defends the commercialization of an area as a constitutional application of this practice.

The precedent established by Kelo is problematic for several reasons. One major issue with the commercialization argument is its unpredictable nature. The economic benefits resulting from public takings are completely conditional upon market forces and the private entity’s willingness to follow through with the development of the area, among other factors. This concern became especially relevant to Kelo, because the private developer was ultimately unable to finance the development of Susette Kelo’s formerly owned land, leaving it completely undeveloped and thus failing to follow through with the purpose of its seizure in the first place. Because there is no possible way to ensure that the economic development of a certain area will guarantee a public benefit—regardless of how much the Court or legislature desires that benefit—the practice should not be constitutionally permissible.

Another key issue with eminent domain is the just compensation aspect. Even though the Fifth Amendment guarantees “just compensation” according to the market price, the property owner may obviously value his or her property more than this arbitrarily determined value. A deeper analysis of private property rights also suggests that eminent domain violates individual rights beyond personal attachments to property or disagreements regarding the justice of compensation. Many believe that because property is inextricably tied to a person’s autonomy from the state, the practice of eminent domain violates the very core of individualism itself.

It must also be recognized that eminent domain disproportionately targets economically disenfranchised communities. By seizing private property for public use, the government suggests that the property owners are not capable of putting their property to the most productive use and therefore must sacrifice their ownership rights for the rest of society’s benefit. This issue is particularly apparent with the Court’s logic in Kelo, which argues that other private entities have the potential to put a piece of property to a more “socially beneficial use” than the original property owner. Hypothetically speaking, land can always be used for a more productive or economically beneficial purpose, depending on how one interprets those terms. Therefore, the state’s current interpretation of eminent domain grants individuals with excessive wealth or political clout the power to exploit the “public use” clause under the guise of some subjectively determined benefit to society.

The constitutional precedent established by this case creates a slippery slope in which the “public use” clause becomes the scapegoat for the unlimited seizure of private property so long the taking is justified by some arbitrarily defined benefit to society. As Justice Thomas argues in his dissenting opinion, “nearly any lawful use of real private property can be said to generate some incidental benefit to the public,” meaning all private property becomes susceptible to public takings under this precedent.

The greatest challenge of the Supreme Court is its ability to strike a balance between the Framers’ original intent and contemporary societal values. Unfortunately, the Court will often use its judicial review power to destroy the original meaning of a constitutional provision by interpreting it according to contemporary convenience. Once precedent significantly deviates from constitutional principles, however, those principles and their original meaning become null and void. Regarding Kelo, the Court has all but completely eroded the distinction between public and private property, casting aside individual property rights as inconveniences that must be subordinated to the public good. In the future, the Court must reevaluate whether its departure from the Constitution’s original veneration of property rights should continue, and whether overturning certain eminent domain jurisprudence is an effective means of reinstituting the fundamental property rights on which this country was founded.

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