Eminent Domain History
The State Courts of Utah define eminent domain as: "The power to take private property for public use by the state and municipalities." Collier County in Florida posts this definition for its citizens: "The right or power of public and semi-public agencies to take private property for public purposes without the owner’s consent on payment of just compensation." The online knowledge compendium Wikipedia defines it as follows:
In law, eminent domain is the power of the state to appropriate private property for its own use without the owner's consent. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale.
Property rights purists contend that the words eminent domain appear nowhere in the U.S. Constitution. However, eminent domain law is based on the Fifth Amendment:
[no person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Early uses of eminent domain were primarily for public works large-scale projects such as the utilities of the Tennessee Valley Authority or the grand highway schemes of the years after World War II. In 1954, the Supreme Court ruled in Berman v Parker that private projects meet the definition if they have a "public purpose". Under this rationale, the court approved a slum-clearance plan of the government of Washington, DC. In the latter half of the 20th century the process was used to clear "blighted" areas of American cities for redevelopment with projects such as the Baltimore waterfront standing as successful eminent domain stories.
Eminent domain cases, like Kelo v. New London, recently decided by the Supreme Court, has centered about the definition of "public use." In recent years "public good" has been expanded to include private economic developments which use eminent domain seizures to enable commercial development for the purpose of generating more tax revenue for the local government.
Although many court-watchers expected the decision against the homeowners in Kelo v. New London, a recent case bucks that trend. In 1981, the Supreme Court of Michigan permitted eminent domain powers to be exercised in the neighborhood of Poletown in order to build a General Motors plant. Over 1000 homes and 600 businesses were razed for the plant. Courts in other states relied on this decision in framing their own eminent domain cases.
As General Motors' fortunes fluctuated over the decades the promised urban regeneration didn't materialize. In 2004, the
Pacific Legal Foundation and the Michigan branch of the ACLU asked the Michigan Supreme Court to "restore the constitutional protections which ensure that private property cannot be taken to benefit powerful interest groups at the expense of the less powerful." The Supreme Court voted unanimously to overturn the Poletown eminent domain ruling over 20 years after the neighborhood was razed.
The media and court observers are heralding Kelo v. New London as powerful reaffirmation of the use of eminent domain for private development. A recent study by the property rights group Institute for Justice, which is representing the New London homeowners in court, found about 10,000 cases from 1998 to 2002 of local governments in 41 states using or threatening to use eminent domain to transfer home and properties from one private owner to another. Courts in at least six states have upheld the practice.
And yet, according to THE EONOMIST, "while a dozen states frequently use eminent domain for economic development, a dozen specifically ban or discourage it."
Read more about the debate over Kelo v. New London court case and then discuss your thoughts on the topic.
Additional sources: Poletown brief; CBS News, "Eminent Domain Being Abused?" July 4, 2004; THE ECONOMIST, Findlaw.org.