A Critique of Eminent Domain

Susette Kelo standing in front of her house, seized by the town of New London to sell to developers. Photo Courtesy of the Institute for Justice

The Fifth Amendment of the United States Constitution protects citizens from improper seizure of their property. It states, “…nor shall private property be taken for public use, without just compensation.” The stipulation that private property can be taken from citizens if it benefits public use has historically been used to take lands for roads and infrastructure projects. This infrastructure has been essential for our ability to grow as a nation, geographically and economically. As one of the largest countries in the world by land area, we need robust roads and railroads to connect our far-flung west and east coasts. Eminent domain, the process by which the United States government seizes people’s land, requires that the owner be justly compensated. Individual state constitutions largely conform to this norm. There are a few notable exceptions:

Maine’s constitution notably adds a third element to the requirements for eminent domain. Alongside eminent domain seizing land for public use and ensuring the owner is justly compensated, property can only be seized if it is in the case of a public exigency. Broadly, this public exigency is defined as an emergency of some kind, but there is not a strong legal definition for it. 

Nevada goes further than Maine by specifying that private property cannot be seized for public use without the owner being compensated first, except in “except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made.” While the term “great public peril” is also not specifically defined, it is far more specific than a public exigency.

Ohio’s constitution also specifies that private property is inviolable except: “When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge.” This addendum precludes using eminent domain to seize land for the construction of toll roads or bridges, which is not present in any other state constitutions. 

For residents of the other 47 states, their property is ever at the mercy of the government, in the absence of a clause protecting them from unjust property seizure. The public exigency element of these states’ taking clauses (a section of their constitution explaining eminent domain) protects citizens from arbitrary seizure. This danger of arbitrary eminent domain being used to seize people’s property became especially dangerous after Kelo v. New London in 2005. This case, eventually appealed all the way to the Supreme Court, was a class action lawsuit (a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group) of individuals suing the Connecticut town of New London.

New London had been in decline for a while, and the city government seized prime beachfront houses from residents to sell to developers to build condos. The city said selling the land would create jobs and generate revenue, thus satisfying the public use element of the Fifth Amendment. The Rehnquist Court ruled 5-4 to allow the town to seize the land to sell to developers. In states without protection against arbitrary seizure, this could happen to anyone.

While I agree with eminent domain in principle when it allows the government to offer essential services such as roads or other essential infrastructure, if private property can be seized and sold to developers because jobs and tax revenue serve the public good, then the bar of public use currently lays on the floor. By definition, tearing down a structure to build a new one will create jobs, as such, the justification of public good is farcical. We must read Kelo v. New London as a cautionary tale. More states should adopt a clause to their constitution protecting citizens from imminent domain unless a public exigency necessitates it, lest all our houses be seized and sold to benefit our local government.  

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