Eminent domain “abuse”? — VOICES for REASON

Eminent domain, the government’s power to seize private land for “public use,” was once confined to such humdrum business as condemning land for highways and power lines. But nowadays, eminent domain is being used to assemble large tracts of land for politically favored projects designed to fatten the tax rolls. According to Institute for Justice senior attorney Dana Berliner, writing recently in the New York Daily News, “anyone’s home, business or church can be taken” because courts have interpreted the Constitution to give “little or no protection to home or business owners.”

This expansive view of eminent domain has, in effect, given state and local government planners a blank check on the power to take land without the owner’s consent. In one such case that went to the Supreme Court back in 2005, Kelo v. New London, a local government made headlines by confiscating a woman’s home to make way for a private retail development. Civil liberties law firms such as the Institute for Justice have been trying to put the brakes on that trend by filing lawsuits and urging legislative reform, with some success.

As a result, however, public debate has increasingly centered on what’s called “eminent domain abuse.” This phrase has become so common that I think it’s a good idea to stop and examine what it assumes—and to question whether it’s the best way to think about eminent domain.

First, let me say that I understand why the lawyers phrase it that way. In a legal sense, the term “eminent domain abuse” describes a real phenomenon—an improperly expansive reading of the Fifth Amendment’s “public use” requirement. Nevertheless, I don’t think “eminent domain abuse” accurately names the real principle at stake.

Why? Because that term assumes that eminent domain is proper for some purposes, in some situations—but it’s “abused” when it’s employed more expansively, to support ventures aimed at private profit. In short, it forecloses debate on an issue that should remain open to question: whether eminent domain is proper in any situation.

Here’s the more fundamental question: Is government ever entitled to take land from peaceful citizens by means of overwhelming force? Remember that, as Berliner notes, a private citizen on the wrong end of an eminent domain action “has no choice: not about whether to keep property and not about how much to sell it for.”

Even when it comes to highways, power lines, and similar ventures—which most people assume are impractical without the aid of eminent domain—there’s a case to be made that the principle of property rights applies. In the twenty-first century, we have accumulated lots of experience with private roads, competition among cable companies, and the workings of a vibrant cell phone market. Such innovations, added to the whole phenomenon of globalization, are waking us up to the incredible flexibility and productive power of private contracts. In a few decades, it’s possible that our grandchildren will shake their heads at our ruefully nostalgic stories about wasting untold hours sitting in commuter backups on publicly owned roads—and they’ll marvel at how long we endured a state-run highway monopoly that made the Post Office look efficient.

What if Ayn Rand was correct in holding that eminent domain is a contradiction of the principle of property rights and therefore does not belong in the Constitution? If that’s true, then the day might come when “eminent domain abuse” merits no more discussion than “bank robbery abuse,” since both phrases imply toleration for that which has no place whatsoever in a free society.

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