The Frontier of Eminent Domain
by Alexandra Klass
After reading The Frontier of Eminent Domain by Alexandra Klass it is clear that most property owners, the “Kings of their castle”, should be concerned about their property rights in a very tangible sense. In fact, it is possible that, under the right circumstances, branches of the federal, state or local government can take a person’s property and prevail in a court of law.
One of the most attractive aspects of American folklore is the image of a pioneer family setting out to establish a home stake that they could call their own from one generation to the next as a derivative of common law. Property rights, those privileges that allowed a private citizen to own land and determine the use of that land, were held in high regard as our country encouraged immigration and settlement of the western territories as they were then called. These territories were settled primarily by farmers and ranchers who understood the value of land and they had significant influence over those who created the laws which would govern each new state from New York to California.
Before the states were established the importance of private property was well recognized and landowners in the United States lobbied for complete control over the destiny of their property. As evidence, this concept was so important to the framers of the U.S. Constitution that it was addressed in the Fifth Amendment which provides that private property would be free from any unlawful taking by the government without just compensation. In other words, the government could take your land but they had to pay you a reasonable price and the legal term eminent domain refers to the power of the government to take private property and convert it into public use.
As the country began to grow it became apparent that public policy, which favored the good of the people over the rights of a single property owner, would more frequently allow state and local governments to take property owned by individuals for purposes of health and safety. Eminent domain was used to build railroads, highways, bridges, irrigation and sewage systems as well as a host of other infrastructure projects in the United States.
As the country evolved so too did the body of Supreme Court case law that governed eminent domain and looking back it is informative to review three major decisions which relate to the just compensation requirement and the public use requirements. The first, Kohl v. United States, 91 U.S. 367 (1875) established that the government could seize property through eminent domain as long as it provided just compensation to the owner of the property. Second, in Loretto v. Teleprompter Manahattan CATV Corp. 458 US 419 (1982), the Supreme Court declared that when the government implements a permanent physical occupation of the property, just compensation must be provided even if the area is small and the government’s use does not dramatically impact the owners economic interest. Lastly, in Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005), the Supreme Court held that eminent domain could be used if the government could establish that a community would enjoy economic benefits sufficient to qualify as a public use and therefore satisfy the public use requirement. The fact pattern in Kelo became more complicated when the property that had been taken by eminent domain was transferred for one dollar to a private developer to increase municipal revenues. Years later the property again changed hands making the original seizure appear to be questionable.
It is important to note that these decisions were not free from controversy and dissenting opinions strongly favored the sanctity of individual property rights that would offset the potential abuse of power by state and local governments. The 5-4 decision in Kelo made headlines across the country and the general public voiced opposition to the ruling because it appeared to be overly broad or vague.
In The Frontier of Eminent Domain, Alexandra Klass outlines how state and local governments reacted to the Kelo decision and how legislation has transitioned from broad language to more specific or narrow language. In essence, state and local governments are now acutely aware that property owners have become very sensitive, very protective and very litigious when it comes to their land. Even a cursory reading of our daily news will reveal how frequently property rights and government policy can conflict. Throw in environmental regulations, zoning laws, free trade zones, water rights, cattle grazing easements, mineral rights, oil and gas easements, Native American land rights, natural disaster damage, national park land management and animal rights protestors; and it is easy to see how important eminent domain will become to both property owners and government officials seeking to balance the interests of all interested parties.
The underlying issue surrounding property rights in the United States can be traced back to the Fifth Amendment and the emphasis on individual freedoms that is found in the U.S. Constitution. Our Founding Fathers wanted to protect the rights of every citizen from the oppression many had endured at the hands of the British Government. Personal freedoms, property rights and the right to privacy are currently in the news and in the courts on a daily basis because they are intimately linked. For example, does the government have the right “to take” information from Facebook or your cell phone? Does the government have the right “to take” your property simply to enhance the tax receipts in your neighborhood? Does the government have the right “to take” land from those who cannot afford to preserve their rights in a court of law?
The role of government and the rights of citizens are bound to collide in a political system designed to protect individual freedoms. As Ms. Klass points out, eminent domain is less painful when the compensation surrounding the taking is fair and reasonable.
References:
Kohl v. United States, 91 U.S. 367 (1875)
Loretto v. Teleprompter Manahattan CATV Corp. 458 US 419 (1982)
Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005)