The Truth About Emminent Domain Abuse

This article is republished from the Institute for Justice's publication CastleWatch: Month in Review (May 2006). You can visit the Institute for Justice at www.IJ.org.

In the debate over eminent domain abuse, defenders of the government’s ability to use eminent domain for private commercial development often advance myths in support of their position that eminent domain abuse does not exist. This feature is part of a regular series that explodes those myths with something much more powerful: the truth.
May 17, 2006

Myth: Where should the bar be set when cities use eminent domain? “I don’t think there’s any real definite cut-off point. The minute you do that, then you’re opening yourself up to a problem. I think certainly common sense, but then whose common sense are you going to use? Yours or mine? I suppose everybody has a difference in that.”[1] – Mayor Gary Peterson, Columbia Heights, Minn.

Reality: Arguing that there are no limits to the government’s eminent domain powers is not only disingenuous—it is dangerous. The Fifth Amendment to the U.S. Constitution explicitly limits eminent domain to instances of “public use” and every state constitution includes similar restrictions. The U.S. Supreme Court’s decision in Kelo v. City of New London, which permitted the use of eminent domain for economic development, opened the floodgates for elected officials such as Mayor Peterson to proclaim that there is no “definite cut-off point” for when the government can condemn people’s homes and businesses for private profit. But both morally and constitutionally, nothing could be further from the truth. On the contrary, it leaves every property at risk of arbitrary condemnation at the whim of the government.

Justice Sandra Day O’Connor noted this danger of the Kelo decision in her dissenting opinion (Scroll to page 27 of PDF). She wrote, “To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property—and thereby effectively to delete the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”[2]

But even the nation’s highest court encouraged states to enact stricter limits on their respective eminent domain laws. A mere few months after the decision, the author of the majority opinion, Justice Stevens, went one step further and said he would support eminent domain reform as a legislator. Currently, local officials operate under the belief that they have license to take people’s homes and businesses as they wish, underscoring just how crucial it is for state legislatures to heed the Court’s call and public outcry by enacting meaningful eminent domain reform.

The right to keep what one already rightfully owns is fundamental. If property ownership means anything at all, it must mean being protected from tax-hungry bureaucrats and land-hungry developers teaming up to seize and bulldoze private property for private profit through the use of eminent domain. This nation was founded upon inalienable and individual rights, not some ephemeral notion of common sense that changes with the times and the needs of the well connected.

Government’s awesome power of eminent domain—called “despotic” in the early days of this country—needs limitations. It should not be subject to the arbitrary will of elected officials, as Mayor Peterson suggests. As the Constitution establishes, it should be limited to instances that are truly public uses. Only then will homes and businesses throughout the nation be safe from the government’s wrecking ball.