The case against eminent domain

In many states, you can get kicked out of your home if the local government thinks someone else will generate more tax revenue.

The Takings Clause is a part of the Fifth Amendment to the United States Constitution, and it says that if the government wants to take away someone’s private property, they have to do it in a way that’s fair. Most of us grew up hearing adults say that life isn’t fair. And they’re right—it isn’t. Neither is an authority forcing you to give up your property for whatever they think is fair. 

Courts have said the government can take your property if it’s for something that benefits the public, like building a road or a park. As if that couldn’t go wrong.

How did we get here?!

In the years leading up to the American Revolution, the British government had a policy of taking land from private citizens and giving it to favored individuals or companies for economic development. This practice, known as eminent domain or expropriation, was a major source of frustration for colonists, who were aghast at the violation of their property rights. 

The Proclamation of 1763 forbade American colonists from settling west of the Appalachian Mountains, because British officials might move to the colonies and want some land. This policy prevented colonists from using the land for farming or hunting, and was one of the factors that contributed to the war for independence.

The overreach by a central authority was fresh in Americans’ minds when the Virginia Declaration of Rights was adopted in 1776. It’s one of this country’s earliest documents to recognize the importance of property rights. The Declaration said “all men are by nature equally free and independent, and have certain inherent rights, of which . . . the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” 

Property rights are essential to individual liberty and should be protected by the government, but there was always a fanbase for central power. During the debates at the Constitutional Convention in 1787, there was significant discussion about the need to protect private property rights. James Madison argued that without such protections, the government could seize property at will, which would be a threat to individual liberty. Madison proposed a protection of property rights, which eventually became the Fifth Amendment. 

This was only a decade after Americans experienced the widespread abuse of eminent domain that some of their new leaders were saying “ackshully, taking your property by force is for the greater good.” 

In the early 19th century, the Supreme Court ruled that private property could only be taken for public use and with just compensation. This principle was reaffirmed in several cases, including Pumpelly v. Green Bay Co. (1872) and Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897). 

Later decisions expanded on this idea, such as the landmark case of Kelo v. City of New London in 2005, which held that the government could take private property for economic development purposes.

Kelo v. The Man

• In 2005, the Supreme Court ruled the government could use its power to take Susette Kelo’s private property for economic development purposes, even though her property was not blighted or in disrepair. The city where she lived wanted Pfizer to have her property along with a bunch of other properties, because Pfizer would generate more tax revenue than a lowly nurse and other working class households.
• The homeowners in the affected area argued that this was an improper use of eminent domain, but the Supreme Court ruled in favor of the city, claiming the taking was permissible because it was part of a comprehensive redevelopment plan to create jobs and increase tax revenue.
• Some states were angered enough to pass laws limiting the use of eminent domain.
• Pfizer didn’t even end up building what they promised, and the land ended up being sold for people not named Susette Kelo to live on Susette Kelo’s old property.

Why do I vent about this?

Because I want you to wrestle with the idea that eminent domain—taking property by force—is a power move. I want you to feel something between discomfort and rage when you hear about people being forced to let a road widening take over their front yard, or being forced to move out of their home to make way for some corporation.

We’ve gotten to a place in modern culture where the press equates “property rights” and “right wing extremist,” sending a not-so-subtle message to readers or viewers that you don’t want to side with those people. But property rights aren’t a right/left or red/blue issue. My most left-wing friend should be a staunch property rights advocate to hold big corporate power at bay. 

The British Empire was hardly a left-wing operative, taking what they wanted when they wanted in the 1700s. And the City of New London was definitely not pushing a working-class agenda as it kicked out homeowners to make way for Big Pharma in the early 2000s. 

If you shrug at a government having the power to take stuff just because, then all your other rights and protections are up for grabs.

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