Malcolm Rivera
The use of eminent domain has long been a controversial topic in the United States, with the government's power to seize private property for public use often sparking debates over fairness and constitutionality. While some argue that eminent domain is necessary for infrastructure development and the public interest, others criticize its potential for abuse, especially when used for private gain. The Fifth Amendment to the U.S. Constitution places restrictions on eminent domain, requiring “public use” and “just compensation” for property owners. However, the interpretation of public use has evolved over time, and eminent domain cases, such as Kelo v. City of New London, have sparked public outcry and led to states strengthening their eminent domain laws to protect private property rights.
| Characteristics | Values |
|---|---|
| History of eminent domain | The federal government’s power of eminent domain has long been used in the United States to acquire property for public use. |
| Eminent domain was transplanted into the American colonies with the common law. | |
| The Fifth Amendment to the US Constitution places two strict limits on eminent domain: private property can be taken only for "public use", and the owner must be paid "just compensation". | |
| The US Supreme Court first examined federal eminent domain power in 1876. | |
| The Takings Clause in the Fifth Amendment limits eminent domain to public use and requires just compensation. | |
| Eminent domain has been used to facilitate transportation, supply water, construct public buildings, and aid in defense readiness. | |
| Eminent domain has been used to establish parks and set aside open spaces, preserve places of historic interest and natural beauty, and protect environmentally sensitive areas. | |
| Controversy and criticism | The Supreme Court's decision in Kelo v. City of New London (2005) caused significant controversy, as it allowed the government to seize private property to facilitate private development. |
| In response to Kelo, many states have passed laws restricting the government's power to take private property, and 12 states amended their constitutions to stop eminent domain for private gain. | |
| Eminent domain has been criticised as a "despotic" power of the government, with the potential to destroy lives and livelihoods by uprooting people from their homes and communities. | |
| Communities targeted by eminent domain for private development are more likely to be communities of colour and have lower incomes and education levels than surrounding neighbourhoods. | |
| Eminent domain has been used to benefit private interests, such as pipeline companies and property developers. |
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What You'll Learn
The Fifth Amendment and eminent domain
The Fifth Amendment to the US Constitution, ratified in 1791, contains a clause that says: "private property shall not be taken by the government for public use without just compensation". This is known as the Takings Clause or the Just Compensation Clause. The Fifth Amendment did not create the national government's right to use eminent domain; it simply limited it to public use.
The Fifth Amendment includes the public use requirement under the Takings Clause. Some historians have suggested that these limitations on the taking power were inspired by the need to permit the army to secure mounts, fodder, and provisions from local ranchers and the perceived need to assure them compensation for such takings.
The US Supreme Court first examined federal eminent domain power in 1876 in Kohl v. United States. In this case, Justice William Strong called the authority of the federal government to appropriate property for public uses “essential to its independent existence and perpetuity”. The Supreme Court again acknowledged the existence of condemnation authority in 1896 in United States v. Gettysburg Electric Railroad Company. The Court opined that the federal government has the power to condemn property “whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution”.
The power of eminent domain has been used to facilitate transportation, supply water, construct public buildings, and aid in defense readiness. It has also been used to establish parks and set aside open space for future generations, preserving places of historical interest, natural beauty, and environmental sensitivity.
In Kelo et al. v. City of New London, the US Supreme Court authorized local governments to force private citizens to sell their property and shift ownership to private economic developers, provided public benefit is likely. The Court said that public use can be defined more broadly as public purpose. This ruling was criticized by property-rights activists who argued that it violated the Fifth Amendment because the forced transfer of ownership was between private individuals and not for public use.
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Eminent domain for economic development
The use of eminent domain for economic development has been a controversial topic in the United States, with a history of legal disputes and public outcry. The Fifth Amendment to the U.S. Constitution, specifically the Takings Clause, addresses this issue by mandating that private property cannot be taken for public use without "just compensation". This clause limits the government's power to acquire property through eminent domain to cases of "public use" and ensures that property owners receive fair payment.
The interpretation of "public use" has been a point of contention. In the Kelo v. City of New London case in 2005, the Supreme Court ruled that the government could use eminent domain to seize private property for economic development, considering it a public use if it benefited the community economically. This decision sparked a backlash, with many states strengthening their eminent domain laws to protect private property rights and restrict the government's takings power.
The use of eminent domain for economic development has been justified as a means to promote economic growth, create jobs, increase tax revenues, and revitalize distressed areas. In the New London case, the city aimed to boost economic development after the closure of its major employer. However, critics argue that eminent domain can disproportionately affect vulnerable communities, with research showing that cases involving economic development as public use have resulted in the displacement of racial minorities and low-income residents at higher rates.
While eminent domain can facilitate economic development, there are concerns about potential abuse of power and the undervaluation of property. The impact of eminent domain is complex, with benefits and costs accruing to different groups, making it challenging to objectively measure its overall effect. The limited and inconsistent research on its economic effects further complicates the understanding of its consequences.
The authority to exercise eminent domain rests with the legislative branch of the government, which may delegate this power to private entities for specific purposes. The use of eminent domain by energy and utility companies to build infrastructure, such as renewable energy projects, is an example of its application for economic development purposes. However, the definition of "public use" in these cases can vary across legal jurisdictions, and some states have enacted restrictions to prevent the sole use of eminent domain for economic development.
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Eminent domain and abuse of power
Eminent domain is the power of the government to take away someone’s private property. In the United States, this power is held by the federal government and state and local governments. The Fifth Amendment to the U.S. Constitution places two strict limits on eminent domain: First, private property can be taken only for “public use,” or public works projects, like roads, bridges, and transportation. Second, even if a property is taken for public use, the owner must be paid “just compensation” for the fair market value of the property.
The eminent domain has been criticised as an abuse of power, with the potential to destroy lives and livelihoods by uprooting people from their homes, businesses, and communities. The Supreme Court's decision in Kelo v. City of New London in 2005 significantly broadened the government's power to take private property. The Court allowed the government to use eminent domain to seize private property for economic development, as long as there was a conceivable public purpose. This decision caused a significant controversy, with many states passing laws to restrict the government's power.
The Kelo decision also raised concerns about the abuse of eminent domain for private gain, particularly in communities of color and low-income areas. Courts have been criticised for deferring to claims of "public purpose" without sufficient scrutiny, enabling the government to take private property for the benefit of private parties. In response to Kelo, 47 states strengthened their eminent domain laws, and 12 states amended their constitutions to stop eminent domain from benefiting private parties.
The use of eminent domain by state and local governments for economic development purposes has been a growing trend. For example, in 1981, the Michigan courts allowed the City of Detroit to condemn and raze the Poletown neighborhood for a General Motors plant. However, there has also been a backlash, with some states passing laws to prohibit the use of eminent domain for economic development or tax revenue purposes.
While eminent domain can be a necessary tool for governments to acquire property for public use, it is essential to have checks and balances in place to prevent abuse of power and protect the rights of property owners. The Fifth Amendment provides some limitations, but the interpretation of "public use" and "just compensation" has been a subject of debate and judicial interpretation.
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The Kelo decision and its impact
The Kelo decision, also known as Kelo v. City of New London, is a significant case that addressed the controversial issue of eminent domain and its constitutionality in the United States. The case centred around Susette Kelo and her neighbours in the Fort Trumbull neighbourhood of New London, Connecticut. The City of New London utilised its power of eminent domain, allowing it to take private property for public use, and transferred this power to the New London Development Corporation (NLDC), a private entity.
In a 5-4 decision, the Supreme Court ruled in favour of the City of New London, determining that the government's use of eminent domain was justified as it served a public purpose. The Court considered the economic development resulting from the private development as a benefit to the community, thus meeting the "public use" requirement. This decision sparked widespread controversy and public outcry, with many perceiving it as an overreach of government power and a threat to property rights.
The impact of the Kelo decision was significant and led to several key outcomes:
- Backlash and Reform: The decision triggered a strong bipartisan backlash, with 47 states strengthening their eminent domain laws and 12 states amending their constitutions to explicitly prevent the use of eminent domain for private gain.
- Judicial Reactions: Eight state supreme courts strengthened protections for property rights, and 11 state supreme courts either rejected Kelo outright or enhanced the safeguards for property owners.
- Legislative Responses: State legislatures also acted to address concerns, with 43 state legislatures passing laws to bolster protections for property owners, particularly homeowners and small business owners.
- Public Awareness and Activism: The Kelo case educated the public about eminent domain abuse, and citizen activists successfully halted 44 projects that intended to misuse eminent domain for private development.
- Executive Action: On the first anniversary of the Kelo decision, President George W. Bush issued Executive Order 13406, emphasising the limitation of eminent domain to "public use" and "just compensation" while prohibiting its use for advancing the economic interests of private parties.
The Kelo decision and its aftermath highlighted the ongoing debate surrounding eminent domain and the delicate balance between government powers and the protection of private property rights. The case served as a catalyst for reform and increased scrutiny of eminent domain practices, leading to enhanced safeguards to prevent abuse and ensure just compensation for property owners.
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The role of the Supreme Court
The Fifth Amendment to the US Constitution places two strict limits on eminent domain: first, that private property can be taken only for "public use", and second, that the owner must be paid "just compensation". The US Supreme Court first examined federal eminent domain power in 1876 in Kohl v. United States, where Justice William Strong called the authority of the federal government to appropriate property for public uses "essential to its independent existence and perpetuity".
In 1954, in the landmark Berman case, the Supreme Court expanded the definition of "public use" to grant local governments broad authority to condemn "blighted areas" to improve them. The ruling in Berman cleared the way for urban renewal projects in the 1960s and 1970s, as the definition of "public use" gradually expanded to include economic development purposes.
In Kelo v. City of New London (2005), the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. The Court considered the taking to be for public use because the community would enjoy the furthering of economic development. The Kelo decision significantly broadened the government's takings power and caused widespread controversy. In response, many states passed laws restricting governments' takings abilities, such as implementing a stricter definition of "public use".
The Supreme Court, over a series of regulatory takings cases, has developed a four-part test to determine whether a regulation is considered a taking. A government regulation is a taking when the government authorizes a permanent physical occupation of real/personal property, or when the regulation causes the loss of all economically beneficial/productive uses of the land.
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Frequently asked questions
Eminent domain is the power of the government to take away someone’s private property.
The Fifth Amendment places two strict limits on eminent domain: First, private property can be taken only for “public use,” or public works projects, like roads and bridges. Second, even if a property is taken for "public use," the owner must be paid "just compensation".
The Fifth Amendment to the Constitution stipulates that the property must be claimed for “a public use”. The Fifth Amendment did not create the national government's right to use eminent domain power; it simply limited it to public use.
