Wednesday, October 30, 2013

The Government's Right to Eminent Domain and its Boundaries

The Government's Right to Eminent Domain and its Boundaries
By: Joseph Krahn
Eminent domain has been a hot topic for many decades. There are arguments for and against it.  The reason that eminent domain exists is that it allows the government to purchase property from an unwilling seller so that a government project, such as a highway, can be completed.  There are many advocates who believe eminent domain is not right because it allows the government to take someone's property away without having a justifiable reason to use the land: Mere compensation is not enough to grant the government the power to take property.  Because of this, there needs to be laws that protect an individual’s private property rights: States such as California are helping to accomplish that.  To better understand why these laws are needed, we first need to understand what eminent domain is.

            Eminent domain is a term that was coined by Hugo Grotius in 1625 (Kmiec, 2005), and it "is the power to take private property for public use by a state or national government.  However, it can be legislatively delegated by the state to municipalities, government subdivisions, or even private persons or corporations when they are authorized to exercise functions of public character" (Eminent Domain, 2013).  Eminent domain was transplanted to America through common law, or natural law, in which it was assumed that the government could take property that was unimproved without compensation. This was accepted in the colonies because at the time land was abundant and cheap (Eminent Domain, 2013).  When the Founding Fathers began writing the United States Constitution, they realized that property rights had to be codified to prevent future government abuse.  James Madison said, "A Government is instituted to protect property of every sort . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own" (Kmiec, 2005).  Thus, the Framers limited the use of eminent domain in the Fifth Amendment to the Constitution: "Nor shall private property be taken for public use, without just compensation"  (Eminent Domain, 2013).  There are many reasons for the government to take property.  "The most common uses for property that is taken through eminent domain is for government buildings and other facilities, public utilities, highways, and railroads" (Eminent Domain, 2013).  There is a lot of important infrastructure that has been built because of this right of the government.  One of the most important uses of eminent domain is building infrastructure for transportation and utilities: Roads, highways, railroads, communications, and electrical wiring take up space.  Sometimes the property that the government needs in order to complete a project is located on land that the owner is not willing to sell.  This creates a spatial monopoly, which is defined as "a local market in which a single landowner controls the supply of land or property type in a particular geography" (Diaz III & Hansz, 2010, p. 165).  Eminent domain allows the government to purchase this property for just compensation so that the road can be completed even if the owner does not want to sell.  However, even though eminent domain does have its purposes, it can be abused.  Thus, the Framers limited the use of eminent domain in the Fifth Amendment to the Constitution: "Nor shall private property be taken for public use, without just compensation"

            As was stated before, eminent domain is important in order to complete projects that are for the public.  But who defines public use?  There are many examples of abuse in the system.  Typically, public use has been defined as a road, school, government buildings, utilities, or something of that nature that would be used by the general public.  But is an arena for a sports team considered appropriate for such public use?  For example, the New York Supreme Court allowed 50 properties in Brooklyn to be condemned so that a new arena could be built for the Nets.  In addition, Washington D.C. seized 18 acres of businesses to build condos and a mall (Sibilla, 2013).  Furthermore, could economic improvements be considered public use?  In 1832, a mill owner was allowed to expand his dam through use of eminent domain because of the economic impact of the expansion.  Therefore, it is quite obvious that there are plenty of ways that eminent domain can be abused.  What is being done about it?

            To help solve the issue of eminent domain abuse, 44 states, including California, have passed eminent domain reform.  These reforms were brought about after Kelo v. New London in which the United States Supreme Court ruled that New London, Connecticut could condemn a neighborhood so that an urban village could be built to house the workers at Pfizer’s new plant.  Because of this abuse, most of the states passed reforms protecting individuals’ property rights. Some states even went so far as to amend their constitutions to further entrench these protections (Sibilla, 2013).  Then in 2006, President George W. Bush signed Executive Order 13406 which stated that eminent domain could not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken" (Eminent Domain, 2013).  These steps were a big win for the rights of property owners.

            Eminent domain has been a hot topic for many decades and there are arguments for and against it.  Eminent domain is sometimes a necessary right for the government to exercise in order to build infrastructure that is needed by the public.  Conversely, there are many cases of eminent domain abuse for projects that are in the gray area of public abuse.   It is ultimately up to the states to make sure that their citizens are protected from property abuses.  In conclusion, eminent domain is necessary, but it needs to be carefully watched and regulated to prevent exploitation.

Works Cited 
Diaz III, Julian and J. Andrew Hansz. Real Estate Analysis: Environments and Activities. Dubuque, IA: Kendall Hunt, 2010.
Eminent Domain. 29 October 2013. 29 October 2013 <>.
Kmiec, Douglas W. The Takings Clause. 15 September 2005. 29 October 2013 <>.
Sibilla, Nick. It's Time For Congress To Actively Condemn Eminent Domain Abuses. 28 June 2013. 29 September 2013 <>.

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