Eminent Tyranny?

What's yours is yours, and what's mine is mine—until the government wants it.

Let's say that you've invented a new computer system, several times faster than anything currently on the market, impervious to hackers, and more powerful than anything else available. You're biding your time, searching for the right manufacturing facility and distribution outlet. Then, you're informed that the Megabucks Corporation wants to manufacture and market your computer; they're planning an assembly complex, ramping-up their distribution channels, and expect to hire several hundred people to staff their new facility—and you must surrender all your material to them in furtherance of that effort (for which you'll be compensated). You're out of the manufacturing business before you even start.

Or let's say that you're the third-generation owner of a small factory producing specialty furniture items; not a huge operation, but you have a couple dozen or so employees, have never recorded a business loss, and earn a comfortable living—as did your father and his father before him, keeping costs down by operating out of that same aging building in an older part of town. One day you open your morning newspaper to learn that your factory has been condemned and earmarked for demolition, and the land it sits on will be transferred to an investment group intending to establish a high-end automobile dealership on the site (you will receive "just compensation"—though your employees will be pretty much out of luck). This action is being taken in the interest of spurring "economic development" in the community.

Sound a bit far-fetched? Guess again.

Most of us had a passing acquaintance with the phrase "eminent domain" sometime back around the eighth grade. We were taught that it was a good thing—an essential tool employed in the completion of numerous projects for the public good (e.g., the interstate highway system)—and that its application was judicious, fair and relatively benign…used somewhat rarely, and only when absolutely necessary. For example: Imagine that the government wants to build a road from a rapidly-growing metropolitan area to an outlying bedroom community to accommodate the growing workforce, expediting the commute from home to work and back again. The planned route for this road cuts across a parcel of land that you own. You'd be approached with an offer to acquire a part of your property—for which you will receive just compensation (required by law—though it's highly subjective what constitutes the "just" part of that clause). Should you refuse to work a deal, the matter goes to court. At this point, two things become clear: First, you'll almost certainly lose. Second, the court will determine your just compensation. End of conversation.

The foregoing example embodies the crucial original intent of the Founding Fathers. The newly-formed republic was putting into place the framework of government, and realized the need for that government to be able to judiciously exercise its sovereignty in matters of compelling public need; however, the author of that clause within the Fifth Amendment (James Madison) clearly wrangled over the issue, endeavoring also to both preserve the rights of the property owner and to insure just compensation for property taken by the government. An excellent explanation can be found in a research paper authored by Amanda Williams (Amanda Williams: Examining the Current Abuse of the Doctrine of Eminent Domain. Lethbridge Undergraduate Research Journal. 2009. Volume 3 Number 2.), an excerpt of which follows:

Whenever considering whether or not an abuse of power is taking place concerning the application of any law, it is crucial to consider the original intent of the legislative authors. Considering original intent is important because it encourages consistency with respect to how a law or amendment is applied. If the judicial branch did not take the legislative authors' intent into consideration, interpretation of the Constitution would be malleable and subject to the personal opinion of whomever sat on the bench at the time. Founded on a belief in state and individual rights, the United States Constitution serves as a covenant to its people that it will consistently protect the rights of the individual, not the personal opinion of government officials at any given time.

Transitioning from British rule, the thirteen original colonies sought to ratify a Constitution that would limit the power of the government. Therefore, no matter how vague an amendment may appear, the mindset of early America must be considered when interpreting the law. Evidence of this mindset is clear in early documents like the Federalist Papers as well as other historical discourse. Consequently, clauses like the eminent domain clause of the Fifth Amendment are clearly in place to limit the power of the government to seize property unfairly and without just cause. According to a speech given by Madison in 1792,

“As a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected.”

Madison also recognized that an amendment would prove fruitless if it were too complicated, so he intentionally constructed the Fifth Amendment to be relatively vague to benefit and protect the individual. He wrote in the Federalist No. 62,

“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; that no man who knows what the law is today can guess what it will be tomorrow.”

This statement reinforces the advantage of deferring to original intent for matters of consistency, for if the judicial branch did not take the legislative authors' original intent into consideration, “no man who knows what the law is today can guess what it will be tomorrow” (Madison). It has become a sad irony that the ambiguity of these laws is working against the greater public, when in fact these laws were intentionally vague, not to leave room for the government to interpret for its own advantage, but to accommodate the needs of the people in a developing society. These accommodations would include the construction of critical infrastructures to sustain the basic needs of an American populace that is maturing and requiring technological advances. For example, accommodations like the creation of highways and railroads for the transportation of both people and commerce, in addition to technology like the need for a 20th Century Kennedy Space Center; advancements that clearly benefit the United States, its people and the world, but that were not likely predicted as a need by our founding fathers.


In general, these principles were followed—until 1954. Beginning that year with Berman v. Parker, the Supreme Court began a perilous and fateful journey down the road of government intrusion into the realm of property rights that has rapidly gained momentum. With the widening of the scope of what constitutes "public good" to what is now perceived as "public purpose," an avalanche of cases of government taking of private property has ensued. Property is now routinely condemned and essentially redistributed sometimes on the basis of largely speculative and nebulous grounds of improved tax revenue, higher tax base within a designated area, or pretty much whatever the governing authority deems as "public purpose"—with little to restrain their ardor. (It's also important to note that "property" to be seized is not limited to real estate; it might, for example, be extended to include patents, copyrights, trade secrets—and more.)

In the recently publicized case of Kelo v. City of New London, the scheme backfired. Badly. After forcing many people from their homes in a deal to attract investment by the pharmaceutical firm Pfizer, New London is now left holding the bag in the wake of Pfizer's withdrawal from the area without so much as breaking ground on the planned facility—after the expenditure of some $80 million in public funds and the uprooting of several longtime residents.

On an encouraging note, some states have introduced legislation aimed at narrowing government's authority; however, this has proved the exception rather than the rule. It seems to many observers that The Great Land Grab is on—and escalating. Ironically, the Universal Declaration of Human Rights (as adopted by the United Nations General Assembly–including the United States–in 1948) renders eminent domain seizures without due process illegal under international law—at a time when "human rights" and "international law" are frequently cited.

Notwithstanding the UN's adoption of a human rights declaration (and even that only calls for due process in seizures), the government must retain in its toolbox the judicious invocation of eminent domain. One of the government's most fundamental responsibilities, after all, remains the obligation to serve the public good—though it should stick to building roads and dams.

Some would maintain that the current manifestation of eminent domain doctrine merely represents the natural evolution of law—and that today's world bears faint resemblance to that of Madison's time. Compelling, logical cases can be presented to support the various tax-base arguments and similar claims, and they are both thought-provoking and entertaining as intellectual exercises. As noted by Ms Williams above, though, one must return to the original intent of the Founding Fathers for guidance; absent a constitutional amendment to the contrary, that original intent must still be applied. It's clear that a need was identified for the provision of eminent domain; it's equally clear, however, that this realization was balanced by remarkable concern for protecting the rights of the individual. The provision that resulted was intentionally left vague with a mind toward preserving individual rights—not to foster government encroachment.

Turning away from our original principles is certainly not a step in the right direction.

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