Eminent domain and the collapse of traditional American property rights

Eminent domain has a long running role in American history and has played a large part in the country’s shaping. Traditionally, it is defined as the power of the government to seize the private property of a citizen without the owner’s consent, provided the land goes to “public use.” The Fifth Amendment specifically states (in what is traditionally known as the “Public Use” clause), “…nor shall private property be taken for public use, without just compensation.” When looking at examples of its use throughout the entirety of the existence of the United States, most of the cases have been for the development of items important to infrastructure - such as railroads, public utilities, and highway systems. However, starting in the second half of the twentieth century, the judicial branch of government began a trend of re-interpreting what would be considered “just merit” for the government’s invoking of the power This trend has continued to broaden what can be considered “public use,” and has many worried over the current state of property rights in the United States.

The scope of what merited the use of eminent domain first began to expand in 1954, with the Supreme Court case Berman v. Parker. In that case, the District of Columbia was attempting to seize mostly “blighted” (wasting or abandoned) property in order to sell it to a private developer. That developer would then build private office buildings and condos, in a sense paving the way for the economic redevelopment of the area. There remained just one problem: not all of the property that the District of Columbia was seeking to redevelop was in poor or “blighted” enough condition. This naturally led the owner of a department store, which was in fine form but nevertheless slated to be redeveloped, eventually to bring suit to the Supreme Court. The owner logically argued that since his property was not a part of the surrounding urban decay, there would be no sense in designating that specific property for “public use,” further arguing that it was not legal just to strip a private business of its land solely for the development of yet another private business.

This argument, as powerful in its simplicity as it may have been, was not enough to please the Court, which ruled unanimously against the owner, reasoning that such a large area of urban decay needed an equally large redevelopment plan. However, what ultimately proved to be the most important in the Court’s ruling was its expansion of the Fifth Amendment clause, which now no longer simply meant the construction of public facilities or utilities, but also included things that would be of physical or economic benefit to the greater community. This somewhat radical expansion of the “public use” clause has continued its trend in Supreme Court cases, culminating in their relatively recent ruling in Kelo v. City of New London (2005).

Throughout the Cold War years, the city of New London, Connecticut, fared well economically. Electric Boat Co., the defense contracting company which was the principal supplier of nuclear submarines to the U.S military, was based there. However, soon after the collapse of the Soviet Union, the city began to fall on hard financial times. Thus when the pharmaceutical giant Pfizer began constructing a research facility on the outskirts of one of New London’s poorer areas, the city began making plans to redevelop the neighborhood in order to foster the financial opportunity which the project was expected to create. This included the private development of hotels, apartments, townhouses, etc. And once certain that property owners in the area refused to sell their homes for redevelopment, the city did not hesitate to invoke its eminent domain power to acquire the land. Having eventually made its way to the Supreme Court, the case was decided in favor of the city in a 5-4 decision, which effectively meant that the “public use” clause of the Fifth Amendment had gone from meaning literally “public use,” to meaning that the state had the right to seize private property, regardless or whether or not it was in decay, and sell it, to whatever private developer suited its purpose, so long as it fostered “economic development” (It should be noted that this decision was of great benefit to the Pfizer corporation and almost perfectly fit with its own development plans).

Despite the fact that the plaintiffs in the case who were trying to hold onto their property were of middle or low class background, the judges on the court traditionally viewed as the most “liberal” (Ginsberg, Souter, Breyer, Stevens, and Kennedy) ruled in favor of the city, while those viewed as traditionally the most “conservative” (O’Connor, Scalia, Rehnquist, Thomas) were opposed to the ruling. Furthermore, it was Justice O’Connor who noted in her dissent that “Any property may now be taken for the benefit of another private property, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens of disproportionate influence and power in the political process, including large corporations and development firms.”

In my opinion, what is traditionally seen as the expansion of that which merits the use of eminent domain through the “public use” clause of the Fifth Amendment is not so much an expansion as it is a plain distortion. Stripping citizens of their private property for the sake of an “economic development” that in reality benefits giant corporations like Pfizer far more than the general public is inherently not a good thing. It puts all the power in the hands of the “haves” and leaves nothing at all for the “have nots.” This is an issue which has the potential of gathering concern across the ideological spectrum, and rightfully so. As Justice Thomas wrote concerning the Court’s decision, “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”