Eminent Domain

In June 2005, the United States Supreme Court ruled in favor of a Connecticut city’s authority to appropriate private property for economic development. The court’s divided (5-4) decision in Kelo v. New London declared that private landowners had no constitutional grounds to resist eminent-domain property seizures. 

Eminent domain is derived from the Latin dominium eminens, meaning “supreme lordship.” It identifies the inherent power assumed to be possessed by a sovereign governing authority to take land for public projects. In other countries it may be known as compulsory purchase, compulsory acquisition or expropriation.

Customarily, government officials will “condemn” a piece of private property, signaling their intent to exercise the authority of eminent domain. The term condemnation is not to be confused with the legal process whereby a structure is deemed unfit for habitation. In such cases the structure is not taken, but rather the owner is required to repair the building before it can be occupied.

As one might suspect, the seizing of personal property is a troublesome topic that breeds conflict and confusion. The recent Kelo ruling has contributed further to the controversy, leaving many wondering: Just how private is private property?

Scott Bullock, a senior attorney at the Institute for Justice who argued the Kelo case before the U.S. Supreme Court, wrote in the June 24, 2006, issue of the Wall Street Journal: “Since Kelo, cities have pushed out motels for commercial development and replaced small businesses with upscale hotels; bulldozed houses to make room for shopping malls. There’s an even stronger and uglier trend: Towns and cities are taking modest-sized houses from their owners and handing them over to the builders of trendier, more upscale homes and condominiums (whose new owners will pay higher taxes).”

Before we rush to condemn all “condemnations,” however, we should consider how they have contributed to the development of the country’s infrastructure and thereby enhanced the lives of many. 

Airports, bridges, tunnels, railroads, interstate highways and public parks that are such an integral part of modern life simply wouldn’t exist without the exercise of eminent domain. The U.S. Interstate Highway System, developed during the Eisenhower administration in the early 1950s, required the purchase—through eminent domain—of enough land to construct more than 42,000 miles of freeway.

The framers of the Constitution envisioned such eventualities and provided for them in what is commonly called the Takings Clause of the Fifth Amendment: “. . . nor shall private property be taken for public use, without just compensation.” The wording acknowledges the ownership of private property and anticipates the need for the taking of private land for public use only when just compensation is offered. 

What has caused concern about the Supreme Court’s ruling in Kelo v. New London is that it has ostensibly expanded the traditional threshold for public takings from “public use,” typically the building of a bridge or tunnel traveled by the general public, to a “public purpose” standard, such as economic development.

Supporters of the majority ruling suggest that expanding the interpretation of eminent domain to include economic development better equips municipalities to revive blighted neighborhoods and restore economically distressed areas.

However, the fear behind the reactive furor to the ruling is that it now appears the government can take private property from one individual and make it available to another private party for the perceived purpose of adding to the local tax base.

Dissenting Justice Clarence Thomas wrote, “The consequences of today’s decision are not difficult to predict, and promise to be harmful.”

Scott Bullock agrees with Thomas’s apprehension. “The stakes are high. In the five years between 1998 and 2002, more than 10,000 properties nationwide were threatened or condemned for private development through eminent domain; in just the past year since Kelo, more than 5,700 properties have been similarly threatened or taken. Unless the laws are changed, these unconscionable practices will continue.”

Subsequently, several states have responded by enacting initiatives to protect the property rights of landowners.

Former Justice Sandra Day O’Connor, in the dissenting opinion of the Kelo ruling, expressed the concern of many regarding the new standard of public purpose: “Whatever the reason for a given condemnation, the effect is the same from the constitutional perspective—private property is forcibly relinquished to new private ownership. . . . The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The potential abuse of personal property seizure is not a new problem. Human history is replete with examples of envy and lust for land. Does a citizen who is a private landowner have the right to say no to an authority that envisions an allegedly better purpose for his or her land?

Consider this account from 1 Kings 21 in the Hebrew Scriptures. Naboth, a citizen of Jezreel, owned a vineyard adjacent to one of the palaces of King Ahab of Samaria, who admired the property and thought it would make a nice garden of herbs. The property was particularly attractive to him because of its proximity to his house. He offered to trade Naboth another (even better) piece of land or to pay just compensation in cash for his vineyard. However, Naboth declined the king’s offer, citing his family’s attachment to the land for several generations. King Ahab, upset at having his offer turned down, brooded about the situation. When his wife, Jezebel, asked what was troubling him, Ahab explained that his generous offer had been turned down. Jezebel reminded him that he was king and possessed the power to get what he wanted. She then made arrangements to have Naboth falsely accused of a crime and thus discredited in the eyes of local community leaders. Naboth was found guilty by the kangaroo court and executed according to the queen’s plan. When the wicked deed was done, Jezebel announced to Ahab: “Arise, take possession of the vineyard of Naboth the Jezreelite, which he refused to give you for money” (1 Kings 21:1–15).

Subsequently God’s servant Elijah was sent to Ahab to charge him with having “sold [himself] to do evil in the sight of the Lord” (verse 20). The plot to take Naboth’s land against his will was determined to be “evil.” Simply wanting someone else’s property isn’t justification for taking it, even if you’re a powerful potentate.

As this example shows, contrary to a common misconception, the Judeo-Christian ethic is not critical of the concept of private property. In fact, the Hebrew Scriptures depict the safety and serenity of the future Messianic age under God’s governing guidance as an idyllic setting of personal peace and prosperity: “Everyone shall sit under his vine and under his fig tree, and no one shall make them afraid; for the mouth of the Lord of hosts has spoken” (Micah 4:4).

Apparently, when the Lord exercises “supreme lordship,” people are at peace on their private property and free from fear that eminent domain will be abused.