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Eminent (Imminent) Domain Cases: The Supreme Court Got It Wrong

Updated on December 5, 2012
The U.S. Constitution is not a sketchpad for Supreme Court Doodling
The U.S. Constitution is not a sketchpad for Supreme Court Doodling | Source

The Supreme Court's Eminent (Imminent) Domain Abuse Verdict

from the Curmudgeon's desk: GA Anderson

The Supreme Court's 2005 Eminent (Imminent) Domain Abuse Verdict in Kelo v. New London has been called its worse decision since the infamous Dred Scott ruling, and now that Mississippi has become the 44th state to pass legislation specifically designed to protect its citizens against the type of governmental abuse that the case highlighted - maybe the proof is in the pudding.

With successive Supreme Court interpretations that appear to have changed the purpose of the eminent domain process from its original intent of "public use" to "economic good," and now finally to "public benefit," the fact that all but six of the fifty states of our nation have seen the need to pass legislation to protect Americans from the possible consequences of the Court's rulings speaks volumes about American's opinion of the Court's opinion.

Eminent Domain and the Fifth Amendment

The process of Eminent Domain is the power to take private property for "public use." It was originally addressed in the Fifth amendment to the U.S. Constitution and was intended to be a process of the federal government in instances where some public use of a piece of property for the welfare of the many would outweigh the private property rights of the individual. The Fourteenth amendment extended its use to the states, and under state guidelines - municipalities,

The applicable wording of the power of eminent domain is in the final sentence of the "Due Process" clause of the Fifth amendment;

"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Known as "the Takings Clause," the Supreme Courts have held that this limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use.

In short, in instances where a private property owner(s) rights to their property would deprive the of beneficial use of the property - then the government has the right of eminent domain to take the property from the private owner, and apply it some public use, like, a library, railroad, roadway, bridge, etc.

The limits to this power would be that the private owner must receive "just compensation" - a fair market value, and the government's intended purpose for the property must be for the "public use" - a benefit to the many of the public, not the few of a group or organization.

So, a 100-acre private property owner could not stop the building of an important public facility or project due to intransigence or greed - the appropriate government body has the power to acquire the property. Within the defined limits of course.

Note: James Madison wrote the Fifth amendment, and in a compromise to opposing views of how private property could be taken, and for what purpose - to at least protect private property rights somewhat, he chose explicit wording using the term "public use" rather than "public purpose", "public interest", or "public benefit"

Eminent Domain and the Supreme Courts

It is the interpretation of the term "public use" that has taken eminent domain issues to the Supreme Court so frequently. And the Court has generally used a much more elastic interpretation than was the apparent purpose of Madison's determination to use that phrase, instead of the other available choices mentioned.

  • The Supreme Court first ruled, in a 1832 case, that eminent domain could be used to allow a mill owner to expand his operations by building a dam, even though it would result in flooding an upstream neighbor. The court opinion stated that a public use does not have to mean public occupation of the land; it can mean a public benefit.

As you can see, already the Supreme Court has determined that in their opinion, "public use" does include the interpretation of "public benefit" - a term Madison specifically chose to avoid using.

  • Another Court interpretation occurred in 1905, when In Clark vs. Nash the Supreme Court stated that different parts of the country may have unique circumstances that would effect the definition of public use. It ruled a farmer could expand his irrigation ditch across another farmer's land (with just compensation), because that farmer was entitled to "the flow of the waters of the said Fort Canyon Creek... and the uses of the said waters is a public use.

Although this court decision determined that "unique circumstances" could vary the definition of what constituted "public use," at least the court remained with Madison's intended purposes.

The first eminent domain case to address the legality of transferring "taken" property to other private ownership, instead of government ownership and use, came in the 1954 case of Berman v. Parker.

  • In this case, Washington D.C., in an effort to clean up some legitimately and severely blighted slums in its Southwest Washington area, used eminent domain to acquire the property, then transferred/sold it to private re-developers who would construct condominiums, private office buildings and a shopping center.

This was a major expansion of the possible definition of "public use," because not only did it validate the use of eminent domain for the purpose of transferring "taken" property to another private owner, but it also expanded the constitutional term to include the meaning of "public benefit." This Court ruling also dealt another blow to the sanctity of private property rights when it ruled that other "non-blighted" properties in the project area could also be "taken" to facilitate completion of the re-development efforts. Critics maintain that although the intent and procedures were legitimate, relative to the blighted slum areas, taking the "non-blighted" properties were an over-reach of the Court's powers - the re-development project should have been modified so as not to effect the "non-blighted" properties. Realists point out that such a patchwork approach would have made the project unfeasible.

As shown by these cases, the Supreme Court's view of the intended restriction of the "public use" requirement was not a black and white issue. "Public use" was beginning to have many faces.

The next major Court affirmation of the scope of "public use" came in the 1984 Hawaii Housing Authority v. Midkiff case.

  • This case has been viewed as the Court's first step off the path of following the script of the Constitution's wording, and venturing into the realm of "intent" instead.The case involved the issue that 75% of the land of Hawaii was owned by just 22 landowners. The Court deemed this to be an oligarchy, (all power vested in the few), that was detrimental to the "public good" of all Hawaiian citizens. It involved lessees living in homes on land owned by large lessors, and It ruled that the state could "take" the private ownership of the lessor and transfer it to the lessee in order to promote the "public good" of the many over the private property rights of the few.
  • Hindsight proved this to be a failed Court decision in that when private property ownership of the many smaller properties, verses the previous large block ownership of the few, did not provide the "public use" benefits as intended. Instead of achieving the goal of redistribution of property ownership to Hawaiian citizens, once former lessees received fee-simple titles to the land parcels - Hawaiian property ownership became an attractive option for investors. Specifically Japanese investors and speculators, who were willing to pay such exorbitant prices that the property values quickly skyrocketed and typical Hawaiian citizens were ultimately priced out of the home ownership market in their own land.

As noted, the Supreme Court has gradually stretched Madison's intended restriction of "public use" to also include the "public good" and "public benefit" terms that he purposely rejected when the Fifth Amendment was written.

And the worse Supreme Court eminent domain decision is yet to come. The eminent domain abuse that 44 states have written specific legislation to protect their citizens from.

Supreme Court Eminent Domain Abuse: Kelo v. New London

In a decision widely viewed as not only wrong, but also a major overstepping of the Court's powers, the 2005 Kelo v. City of New London case illustrates the danger posed to the American citizen's foundational right of private property ownership when a Court chooses to extrapolate the intent of the Constitutional authors, rather than relying on what they actually wrote.

  • This case has been widely discussed, and the link above will give you the specifics, but in brief, the case involved the Court's determination that "public use" could also be defined to mean "economic benefit.
  • In its desire to bring jobs and increased tax revenues to the city, New London, Connecticut proposed a land and tax incentive package to entice Pfizer Pharmaceuticals to relocate to New London, (from a sister Connecticut town, Groton). The deal was supposed to bring over 3000 new jobs - well-paying jobs, and $1.2 million in increased tax revenues. It involved "taking" a large segment of private property in the highly desirable Fort Trumboll area. An area that included well maintained homes and property that had been in families for generations. The town's plan involved "taking" the private property of its citizens, and then transferring it to a private developer that would build the redevelopment intended to lure Pfizer.

But the reality of what happened is quite different from what was intended, and is the primary reason so many states have taken action to protect themselves from what many deem as "Court Activism."

  1. Pfizer only built one medium-size office building in the proposed development
  2. The private "re-developer" was unable to obtain project financing, and the proposed re-development plan failed
  3. Pfizer closed the one office building and decided to expand its Groton facilities instead of moving to New London
  4. The "taken" properties of the re-development plan sat as vacant lots, providing $0 tax revenues, until 2010, when the city turned the area into a public dump for storm refuse.
  5. In another instance of "how much worse can it get," the city attempted to charge the "taken" property owners rent for the five years since the Court ruling, because they had essentially been living on government land.
  6. The total cost of the city and state's "taking" efforts: $78 million for the purchase and bulldozing of the formerly privately held property.

The Hubris of Court and State Activism Revealed in Eminent Domain Abuse Decisions

It seems to be a never ending battle; Left against Right, Conservative vs. Liberal, Constitutional Constructivism vs. Court Activism - with the American citizen the recipient of the results.

The Court's undeniable failure in this instance of "Court Activism," and eminent domain abuse may well stand tall in history as ranking right alongside its infamous Dred Scott decision. Although, in an effort to find " a silver lining," in the storm clouds of disaster, it was an action that has galvanized states and citizens to take further actions to protect themselves from more of these types of Court decisions.

The Federal government even weighed in, on the side of its citizens, when in 2006 then President George W. Bush issued an executive order instructing the federal government to restrict the use of eminent domain:

"...for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

Although a powerful symbolic effort, it will probably not have very much actual effect because the majority of eminent domain issues take place on the state and local levels.

See more GA Anderson Political articles

GA Anderson aka the Curmudgeon
GA Anderson aka the Curmudgeon | Source

About the Author

Writing for the Daily Constitutional, and commentary from the Curmudgeon's desk - GA Anderson

"Seeing it does not make it real, and reading it does not make it true. Use a little common-sense and trust your instincts." - GAA

*Composite image component source citations: Creative Commons images,,, *photo and image source credits: divider and separation images -


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