B.2(p). Eminent Domain

Eminent Domain is limited to genuine public use, not commercial development.

This sentence affirmatively limits the exercise of Eminent Domain to public use, just like the “takings clause” of the Fifth Amendment.[1] It goes further, though. It explicitly denies the use of it to take property for commercial development.

Why is this necessary? The plain language of the Fifth Amendment doesn’t technically preclude commercial use. In fact, it only says that if the government takes property for public use, the original owner must be fairly compensated. A strict textualist jurist could effectively rule, “I don’t like it, but since this property was taken for commercial use, and since due process was requested and given, not only may the government take this and pass it to a commercial party, no compensation must be given.” Now, that isn’t the way the clause has been interpreted, but it could have been, if a strict textualist had chosen to do that. Instead, the scope has been widened from roads and military bases, and the like [2] to include railroads (which were privately owned, though certainly a public benefit). [3] It then grew to encompass urban renewal projects. [4] It expanded further to allow the state to take from a landlord and transfer title to the tenants. [5] All of these expansions led to the decision in 2005 that made economic benefits “a permissible form of public use that justifies the government in seizing property from private citizens.” [6]

There can be lots of debate about which of those examples are beneficial. What isn’t really a matter of debate is that, if a developer works with a specific plan for “economic benefit,” no property is safe. This renders private property non-existent. It’s always subject to someone determining it might have a greater economic value in someone else’s hands. Even at its most benign, Eminent Domain is oppressive to the property owner who is subjected to the taking. For this reason, commercial use should be banned outright. Public use by the government is the only legitimate purpose for its use.

Compensation must be equal to the higher of the inflation-adjusted original cost or average local market value, as averaged by obtaining three appraisals—one chosen by the owner, one chosen by the Person or entity seeking to seize the property, and one chosen by the Court.

This framework assures maximum value, within limits, to the property owner. That serves the dual purpose of ensuring they are fairly compensated and of deterring the government from taking property too readily.

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[1] “nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V.

[2] “It has not been seriously contended during the argument that the United States government is without power to appropriate lands or other property within the states for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories, and arsenals, for navy yards and lighthouses, for custom houses, post offices, and courthouses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of propertyholders to sell, or by the action of a state prohibiting a sale to the federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a state, or even upon that of a private citizen. This cannot be. No one doubts the existence in the state governments of the right of eminent domain -- a right distinct from and paramount to the right of ultimate ownership.” – Kohl v. United States, 91 U.S. 367, 371 (1875).

[3] See Roberts v. Northern Pacific R. Co., 158 U.S. 1 (1895); Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897); Hairston v. Danville & Western Ry. Co., 208 U.S. 598 (1908).

[4] Berman v. Parker, 348 U.S. 26 (1954).

[5] Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

[6] Kelo v. City of New London, 545 U.S. 469 (2005) (summarizing the Court’s holding regarding the use of eminent domain for economic development).