Eminent domain

No person shall ... be deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation.

Based on the centuries-old honored principle that "a man's home is his castle," the Institute for Justice seeks to restore strict limits for when the government can use eminent domain. In the United States, eminent domain is the power of the government to take away someone's private property. But 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 a public use, the owner must be paid "just compensation."

Most people know the Fifth Amendment includes the right to remain silent. But a less-talked-about piece of [this] Amendment protects private property from being seized by the government without compensation. This is known as the "takings clause." ... Eminent domain appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. In the early years of the nation the federal power of eminent domain lay dormant as to property outside the District of Columbia, and it was not until 1876 that its existence was recognized by the Supreme Court.

The original purpose of eminent domain was to enable government officials to acquire property to establish places from which to run the government. The idea was that in order for [it] to operate, it would need, for example, courthouses. Thus, eminent domain supplied government officials with the power to seize a person's property ... on the condition that [they] paid the owner for it. While the "public use" and "just compensation" limitations serve as a check on the power of eminent domain, over time the power has increasingly been abused, especially with respect to the concept of "public use."

The legal doctrine of "eminent domain" (which means "superior ownership") allows government officials to take possession of your property if they decide they need it for the greater good. Traditionally this meant building highways, bridges, and parks, and eminent domain was used only in unusual situations. But today government officials use eminent domain to help private companies ... [Donald Trump] wanted to expand one of his casinos in Atlantic City. Vera Coking was in the way ... New Jersey's Casino Reinvestment Development Authority filed a lawsuit in 1994 to "acquire" Coking's property.

We know that the Constitution must have contained implied powers from the beginning. Article I, Section 9, expressly prohibits Congress from doing certain things, such as passing ex post facto laws and bills of attainder, granting titles of nobility, and interfering with the slave trade until 1808. Why would such prohibitions have been thought necessary if Congress could exercise only the enumerated powers? Another example: The Fifth Amendment limits the power of eminent domain, but the Constitution itself does not enumerate any power of eminent domain. It must be implied.

Atlantic City resident Vera Coking found herself in the sights of a developer who wanted to turn the property on which she lived into a casino parking lot. The developer made what he thought was a good offer, but she refused. The developer became incensed, and instead of further trying to convince Coking to sell or finding other land, he did what a certain kind of businessman has increasingly been able to do ... He pursued a political "solution." He convinced a city redevelopment agency to use the power of eminent domain to force Coking to sell. The developer was Donald Trump.

Politicians and bureaucrats must learn to respect the most important historic treasure in this country—the Bill of Rights. The Fifth Amendment of the Bill of Rights declares that private property shall not "be taken for public use without just compensation." The preservation police are preventing the natural flux of change and suppressing potentially new beauty and innovations arising from individual decisions about their own property, which may, 50 years hence, be regarded as even greater national landmarks.

With the state ..., the price is whatever the state says it is. It will provide services you do not want, will never use ... and then tell you what you must pay for them. In the case of eminent domain, where the state confiscates your property for its own purposes, you will be paid something, but the state itself will decide exactly what it will pay you. How is this preferable to a world in which each individual is allowed to declare the terms on which he will dispose of his person and property, and in which no exchange takes place unless both parties voluntarily agree to it?

Ever since last year's U.S. Supreme Court decision in Kelo v. New London, cities have had the green light to take people's property for private redevelopment ... The victims of eminent domain are usually working-class people who are forced to sacrifice their homes for the sake of luxury homes and shops. Sure, they get paid something, but it's not a true market price and some of these folks don't want to move at any price. Fortunately, the Court ruling unleashed a public backlash ...[O]ver 20 states ... passed restrictions on their cities' power to take people's homes for private development.

The establishment of Shenandoah National Park in 1926 is one of the greatest abuses of eminent domain ... With the Commonwealth of Virginia condemning the entire area and removing more than 450 families, many by force, the park would eventually encompass 196,000 acres. After people were evicted, Virginia transferred the property to the federal government ... It is cases such as this that display the vile nature of government takings, and it would be a proud day for our country should men one day become wise enough to decide that the use of eminent domain should be discarded completely.

Among the many ways in which American citizens have become less secure at the hands of government is the possibility that they will be victimized by eminent domain ... The ... Fifth Amendment states that government shall not take private property except for "public use" and must then pay "just compensation" for it. Sad to say, governments now routinely take land for projects that can be termed "public use" only by distorting the meaning of words, and ... owners seldom receive anything close to "just compensation." For many landowners, eminent domain is merely a fancy term for a legal mugging.

The IRS can freeze your bank account or put a lien on your house without a hearing of any kind. And government can take property through eminent domain. Recently near my home the county government forced a black church to sell its land to make room for a tunnel. The so-called "fair" price paid wasn't enough to rebuild the church. A whole church community will be displaced for a bureaucrats' idea of progress. In a free society, not only would this not happen to a church, but there'd be no BATF to burn churches down [as happened in Waco, Texas]. Is your church BATF-approved?

The Constitution allows government to take private property only where it is for a "public use" and only when just compensation is paid. Going back to 1954, the Court has allowed property seizures where the reason is not for the construction of some item of public infrastructure, such as a road or bridge, but for a private investment where it is alleged that there will be a public benefit. The plaintiff in Kelo sought to have the Court draw a sharp line between the former category and the latter. Sad to say, the Court declined to do so; with its blessing, eminent domain abuse will continue.

Apparently, ... some ... landowners fear the government will steal their land—using the euphemism "eminent domain"—to build a fence to keep independent immigrants out of the country. Who can blame them for not letting the federal agents on their land? Eminent domain is the doctrine that government is the ultimate landlord of the country and people hold their property at the pleasure of the state. If it wants the land, it can take it. To be sure, the Constitution says it has to pay for the land. But there can be no "just compensation" in a forced sale. What makes compensation just is consent ...

The Supreme Court ruled in 1937 that "one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid." ... Between 1949 and 1971, ... urban renewal razed five times as many low-income housing units as it created and evicted more than one million people ... [A] federal district court struck down a Washington, D.C., land-seizure program in 1953 ... But in November 1954, the Supreme Court overturned [it] and effectively gave government officials unlimited power to confiscate and redistribute land.

As a matter of law, this principle is a vestige of absolute monarchy and is contrary to the libertarian spirit of the American founding ... As a matter of logic, no "just compensation" is possible in a forced sale of property, because the only just price is the one freely negotiated by seller and buyer. What makes a transaction morally legitimate is not compensation but consent. Eminent-domain cases are distinguished precisely by their lack of the seller's consent. It's an unfortunate historical fact that the American Founders did not abolish the power of eminent domain.

7. A large retail company, such as Costco or Wal-Mart, has offered a city significant tax benefits if the city uses eminent domain to take an older strip mall of small businesses and give the big-box retailer the choice location. City Council members:
a) Have every right to do so ...
b) Should hire a firm to do a study and hold public meetings ...
c) Should tell the big retail company to find another city to hornswoggle. Property rights are the foundation of American life—whether you're a single homeowner or Donald Bren—even if, in Kelo, a slim high court majority was too foolish to see it.

Homeowners can take advantage of the Fifth Amendment's protections only if quartering qualifies as a form of taking. There can be little doubt that it involves private property ... The Third Amendment makes no explicit provision for compensating homeowners who have suffered quartering. It states only that quartering must be done, if at all, "in a manner to be prescribed by law." Does the "law" in this case include the Fifth Amendment? It would certainly seem odd to hold that it does not, given that the Constitution sets forth the highest law of the land.

Another means by which business gains from governmental power is the seizure of land by eminent domain. Carney recounts several stories of small business owners who found themselves facing eviction from their property because it was coveted by some large developer ... Cheap land is alluring to business, and the prospect of higher tax revenues is alluring to politicians. The fact that eminent domain means the use of force against people—who usually are not fully compensated for their loss—does not trouble either big business moguls or their political henchmen.

The Castle ... is also a movie about eminent domain: the so-called right of a government to seize private property for a public use, ... in exchange for what the government deems to be fair-market value. Thus the movie's title spins off the maxim, "A man's home is his castle." ... The U.S. Supreme Court had just rendered a decision in Kelo v. City of New London, which is now infamously and simply known as Kelo. The Supreme Court ruled that the city could use eminent domain to transfer private property from its owners to a private entity that wishes to use it in a "better" economic manner.

Epstein: ... What was really needed was a coherent hearing ... from the ground up [that] took the very simple position that any time you impose a restriction on land use, the state has to either justify the restriction or pay for the value that is being deprived ... But that was never done ...
[People] think that for every dollar that the public body wins, the individual loses a dollar. What typically happens is the public wins $1.00 and private owners lose $5.00 or $10. If you do that hundreds upon hundreds of times each year, you have a major drain on the social welfare of the community.

[Local government official] "Rest assured, your property will be used for projects vital to the public interest ..."

[Supreme Court judge] We have repeatedly ruled that citizens should be protected from government in their own homes.

Well, if you have a better idea ...

While everyone is worrying about the FUTURE of the Supreme Court,
in the recent PAST, the Court handed down a ruling of ...