5 Things You Need To Understand About Eminent Domain

There’s a little blue house that catches my eye every time I visit my grandparents. It’s not unique; it’s not so different than any other middle class home. There’s nothing about it that stands out—except for where it sits: smack dab in the middle of two large student housing buildings.

It’s kind of comical—there it sits all by itself amongst the complexes; the other single family homes around it long ago torn down.

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I don’t know the story behind the lone holdout—though I have to imagine the developers were incensed by the stubborn owner.

After all, they were building student housing complexes in a small community whose burgeoning state university student population desperately needed it. (And they were probably interested in making their money, too.)

Yet there it sat; the owner hadn’t budged one iota. And I think it’s kind of awesome.

Why? Because it’s such an uncommon sight to see.

So often these little blue houses lose. They succumb to pressure; they succumb to intimidation—and today, thanks to a wildly wrongheaded Supreme Court decision—they’ll often lose to abuses of eminent domain.

Eminent domain’s been in the news over and over again thanks to a certain presidential candidate’s relentless defense of the concept (and purported abuse of it).

So what’s the deal? Is it good? Bad? Right? Wrong? And when exactly did our Founders see it coming into the picture?

Let’s break this down.

1. The right to your private property is a natural right.

It seems like a no-brainer, but even the simple act of writing those words would have meant certain harm to the man who wielded such a radically different idea—which is why John Locke only acknowledged authorship of his “Second Treatise on Government” in his will.

Yet even though our Founders embraced Locke’s radically different stance, recognizing the right to private property as inherent and subsequently enshrining this concept in our founding—today there are still many who take the age-old view that property is just “a legal deed to an object with the use and disposal of the object subject to the whims and mercies of the state.” And when property is just something you have a right to so long as the government decides you can—then eminent domain (especially in the sense the aforementioned presidential candidate understands it) makes perfect sense.

But if there’s a natural God-given right to privately own things, then eminent domain has no place in our society—right? Well—yes and no. Keep reading.

2. Good government’s core purpose is to protect that property.

As James Madison put it (emphasis added), “this being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”

Sen. Ben Sasse also put it succinctly: “government is just our shared project to secure those rights.”

So—it’s our natural right to own property, and it’s good government’s duty to protect that right. Still, government needs to carry out its necessary and limited functions in society—and that’s where the concept of eminent domain comes in.

3. There’s two schools of thought on eminent domain.

First, there’s the idea that government has the inherent right to seize property simply by virtue of being the government. And that’s how most governments have operated for millennia.

Then there’s the second school of thought, and that’s the one that the bucks this age-old understanding of government’s role. In this one, government can exercise eminent domain, but only within very specific confines.

Our Founders knew the tendencies of mankind and our predictably oppressive governments—so, they nipped it in the bud. They sought to protect property and allow government to perform its necessary actions by greatly limiting the concept of eminent domain—making it a small function within even smaller parameters. It was never meant to be a convenience factor for the government (if the government could find another way to complete its necessary project, it should) nor was it meant to further the cause of private ambitions.

4. In the United States, constitutional eminent domain allows the government to take privately owned property—so long as two conditions are fulfilled.

Here’s where those confines I was talking about in No. 3 come in. In the Fifth Amendment’s Takings Clause, our Founders allowed for this action only if a) it’s explicitly for public use, and b) the owner(s) are justly compensated for it.

Roads, public utilities or other government structures—that’s public use. It was never intended to help investors build casino parking lots; it was never meant to allow government to help one private entity steal from another. Think about it: if that was indeed the intent, why would our Founders step away from the historical norm of total government authority in the first place? Why go to the trouble of placing limitations around something governments have done for millennia?

5. 2005 changed everything.

Well, the Supreme Court’s 2005 decision in Kelo v. New London changed everything.

To make a very long story short, the city of New London wanted to bulldoze private homes to make way for things like office spaces, parking areas and other structures that would benefit major pharmaceutical company Pfizer plans to build a new headquarters.

And residents like Susette Kelo, unsurprisingly, weren’t having it. Unfortunately for them, though, the Supreme Court ruled in a 5-4 decision that indeed, they would.

It’s not the first time law-abiding citizens found themselves at the abusive hands of government overreach—but this time was immensely different. How?

This case permanently changed the parameters within which government’s use of eminent domain is confined. Remember No. 4? Government can invoke eminent domain so long as it’s doing so for public use (roads, utilities, government buildings). This case made the deciding factor public purpose. It allows the government to decide if something’s for the “public good.” This then allows government to “take property for the sole purpose of enhancing its tax base.” And, in the Kelo case, “this includes a government taking property from one private party and transferring it to another.” The limits on the government’s ability to take land from its owners were devastatingly loosened.

In sum, yes. We need roads and utilities and military installations and the like. And our Founders wisely provided for that, but always with the understanding that government existed to protect rights first and foremost throughout any project it undertook.

So finally, let me ask you this: if those are the parameters, wouldn’t that make anything else simply legalized, government-assisted theft?

You be the judge.

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