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Eminent Domain, 7/06
Key Lecture Points:
• In June 2005 the US Supreme Court issued its ruling in Kelo v the City of New London, CT, the first major case involving eminent domain issues heard by the Supreme Court since 1984. The Court upheld the right of the city government to use its right of eminent domain to transfer property from one private owner to another for the purpose of economic development. The case arose when the City of New London condemned privately owned property in 2000 so that it could be used as part of a redevelopment plan that will bring a conference center, hotel, and other retail and residential sites to the poor Fort Trumbull neighborhood. The Court’s 5-4 decision held that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible "public use".
• The Fifth Amendment of the US Constitution states that "private property [shall not] be taken for public use, without just compensation". The Fourteenth Amendment was used as the basis of a 1897 Supreme Court decision which required that this “takings clause” also be “incorporated” (applied to the states).
• The Kelo case echoes a long US history of debate and judicial wrangling about eminent domain. Originating in the ‘mill acts’ of colonial authorities, the power of eminent domain has greatly expanded over the years. In the Antebellum period, state courts expanded the definition of “public use” to include infrastructure development, like railroads, and also legitimized the use of a ‘private agent’ to realize such public use. After the Civil War, the Supreme Court blessed these expanding definitions, allowing, for example, the seizure of homes to make way for dam projects that would benefit manufacturing interests. During the New Deal era of President Roosevelt, eminent domain expanded even further, making way, for example, for large economic development projects like the Tennessee Valley Authority.
• In 1954, the Supreme Court decided in Berman v Parker, which informs our present-day understanding of “public use”. The decision redefined “public use” to mean projects with a “public purpose” (and not literal public “use”). The Berman decision formed the basis for the Kelo ruling.
• In the year since the Supreme Court handed down the Kelo ruling, state legislators and courts, as well as the House of Representatives have been attempting to limit the effects of the ruling by passing laws and amendments that will keep eminent domain from being used for economic development purposes. The issue will likely be a big one in the November midterm elections.
For More Information:
• On Kelo: http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London#Majority_and_concurring_opinions
• On eminent domain history: http://www.pbs.org/now/politics/domain.html
• On the history of “public use”: http://www.abanet.org/rppt/publications/magazine/2003/nd/ely.html
Books For Further Reading:
• Jacobs, Harvey J, editor. Who Owns America? Social Conflict over Property Rights. University of Wisconsin Press, 1998. 288 pages.
Description: This is a collection of essays that broadly addresses conflicts over property rights in the US, from land-use laws (zoning) to eminent domain. Jacobs is a land use authority and has gathered a collection of perspectives from eighteen contributors in the fields of law, history, anthropology, economics, sociology, forestry, and environmental studies.
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• Greenhut, Steven. Abuse of Power: How the Government Misuses Eminent Domain. Seven Locks Press, 2004. 312 pages.
Description: As the title indicates, this author argues that government misuses its power of eminent domain, defrauding small property holders and aiding large property holders and corporations. The book was published just as the Supreme Court was getting ready to hear arguments on the Kelo case.
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• Epstein, Richard. Takings: Private Property and the Power of Eminent Domain. Harvard University Press, 1985. 376 pages.
Description: Epstein is a legal scholar and uses this piece to discuss, among other technical issues, the compensation issue. He also questions whether or not eminent domain is an acceptable way to redistribute wealth from rich to poor, and whether this is a legitimate role of government at all. This book is technical and legalistic in nature, and does not cover the Kelo case, as the book was published in 1985. Yet, it is very widely cited among academics and lawyers writing about eminent domain. It has also been cited by the Supreme Court in 4 property rights cases.
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