Eminent Domain versus Private Property Rights

Can the government take your private property? Yes, the federal government can take private property under certain conditions. The last clause of the Fifth Amendment to the U.S. Constitution states “…nor shall private property be taken for public use, without just compensation.” This has become known as the “taking clause.”

The original intent of this clause was that the federal government can buy private property if it was needed to build something like a fort in time of war. However, over the years this “taking clause” (aka “public use clause”) has morphed into licence for states and local governments to take private property for any reason they see fit.

This came to a head when the city of New London, Connecticut, appropriated private land so that a private developer could build on it. The owners sued and in 2005 the case went to the supreme court. In Kelo v. City of New London, the Supreme Court held that “economic development” constituted a “public use” that justified the taking of private property through eminent domain. According to this decision, the government can utilize eminent domain to seize your property whenever the government deems it necessary for “economic development.”

This was, in my opinion supremely wrong (see my 2005 essay below). The U.S. House of Representatives has made several tries to make things right, but the U.S. Senate never followed through. The most recent try was in July, 2018, when the House unanimously passed the Private Property Rights Protection Act (see summary and full text). We should write to our senators (and senatorial candidates) urging them to take up this legislation when they return from August recess.

Here is my essay, written at the time of the Supreme Court decision:

Supremely Wrong

by Jonathan DuHamel

The United States Supreme Court, by its recent decision in Kelo vs. The City of New London, has just put your house up for sale, and your business, and your church.

The U.S. Constitution says “.. nor shall private property be taken for public use without just compensation,” and “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

In the past “public use” has meant things like highways, reservoirs, or other public works. But now, according to the “Kelo” decision, “public use” can mean anything a local government says it means.

The Kelo decision says that government, any government, has the right to condemn your private property and transfer titles to another private party simply to encourage economic development and a larger tax base.

The implications of this decision are made clear in the dissent written by Justice Sandra Day O’Connor: “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. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”

This is not what the founders intended for “public use.”

Justice Thomas wrote, “Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.” Thomas goes on, “The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking…. The Takings Clause is a prohibition, not a grant of power….”

Increasingly, the cost of perceived societal goals are not borne by society as a whole, but by individual property owners. This has long been the case under the Endangered Species Act and increasingly so under the principle of Eminent Domain.

This situation is nothing more than legal plunder, or as Frederic Bastiat put it, “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”

With the “Kelo” decision, municipalities, counties, and states seem to have a license for legal plunder, especially since the term “public use” is now so vague. Beware whenever government proposes a project “for the public good” because usually all the “public” does not share equally in all the “good.”

The “Kelo” decision is supremely and fundamentally wrong because it subjects us to the tyranny of the majority, or the whim of a city council, rather than protect our individual rights as guaranteed by our republican form of government.

Justice O’Connor points out that now “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”


Related articles:

Federal land grabs hurt economy and trample property rights

Private Property Rights vs Environmental Feudalism

Property Rights and Freedom