Eminit Domain

The United States Supreme Court decision in the eminent domain case of Kelo v. City of New London was greeted with anger and frustration in the popular media and the halls of Congress. Editorials and magazine articles expressed popular outrage at the idea that a person's property can be condemned and transferred to another private party for development and private profit. The House of Representatives passed a resolution, by a vote of 365 to 33, expressing the grave disapproval of the House of Representatives regarding the majority opinion of the Supreme Court. The public outery startled some political leaders and legal thinkers, such as Professor Thomas W. Merrill. Professor Merrill testified to the Senate that he considered it "remarkable" and "quite stunning," that there was an "overwhelming reaction" against the Kelo decision and that the reaction had "really sobered him quite a bit." After "giving a great deal of thought to what it is about the decision that has caused this," Merrill finally decided that "the nub of the problem is that the American people believe that property rights are invested with moral significance."

This moral outrage about government transferring property from people who own it to other private parties for their own use came to be called the "Kelo backlash," and news reports and editorials declared throughout the fall or 2005 that this backlash was inspiring statutory reforms in many state legislatures. Following Justice Stevens' suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts , and recognizing that some state courts had imposed stricter limitation of eminent domain through the "public use" requirements in state constitutes , activists and legislators in thirty-eight states began working to change state laws regarding seizure.

So far, the backlash has produced mixed results. Currently, more than a year after Kelo was decided, twenty-four states have enacted legislation regarding eminent domain. Of these new laws, ten provide little or no protection for property owners. Some proposals even appear consciously designed, in the words of one commentator, as "disingenuous" attempts to pretend to do something about eminent domain without actually doing anything to upset the apple cart. On the other hand, laws recently enacted or proposed in many states and Congress do impose significant limits on eminent domain, giving reason to hope that meaningful reform is on the horizon. But if these states are to avoid the mistakes already made in Alabama, Texas, Delaware, Ohio, and many others, lawmakers must learn to resist the pressure to include loopholes and exceptions that betray the promise of protection for property owners.

This paper surveys these new laws and other proposals that are either pending or have failed to become law to see how many proposals for eminent domain reform promise far more than they deliver. After a brief background on eminent domain law after Kelo, and the public reaction to that decision, each bill is explored in sequence. Finally, this paper concludes with some observations about the two biggest obstacles faced by those hoping for serious eminent domain reform; the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for opposition to the outcome of Kelo. In the end, the outlook is pessimistic. Eminent domain abuse is a symptom of a profound cultural and philosophical breakdown, meaning that truly fixing the problem posed by Kelo will take much more than political action.

I. Eminent Domain After Kelo

A. The Background Prohibition on Private Takings

Eminent domain - the government's authority to force a property owner to sell his or her land to the government for "just compensation" - has long been regardeds one of the most jarring and intrusive of government's powers. Early in American history, political and legal thinkers described it as an attribute of sovereignty, which was itself described as the despotic power. But the Lockean political philosophy of the American founding necessarily limited the government's authority. As James Madison put it:;

"The sovereignty of the society as vested in and exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals...in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed."

What Madison meant was that governments are created to protect people from those who might commit crimes or torts against them. According to the old parable of the state of nature, people create a social compact to protect themselves against robbery or other wrongs, so that they do not have to spend their time and energy defending themselves. But this means that the government itself must be designed so as not to fall into the hands of those very wrongdoers. If government were to become perverted into a tool whereby wrongdoers could commit crimes or torts against innocent citizens, Madison believed the people would be no safer than they were in the state of nature since government would not be performing its defining function. Government must therefore be designed not only to control the governed, but also to control itself.

Among the ways of preventing government from becoming a mere tool by which politically successful groups could grant themselves naked preferences at the expense of other citizens was the requirement that laws be general. If the legislature could write particular laws granting favors to particular groups, the likelihood increased that functions would exploit the state's coercive power for their own private benefit. This generality requirement found one of its earliest expressions in the Magna Carta, which declared that "no freeman shall be ...disseised (of his freehold)...except...by the damned proceedings" whereby the sovereign might "make and marre lawes at his pleasure." In other words, the "law of the land" provision meant that a person could not be disseised "but by due Process of the Common law."

Under the "law of the land" clause, the government's use of force in the service of purely private ends was seen as not actually law, but as merely a use of force. To qualify as law, the government's use of force must be engaged in the service of a genuinely public goal, rather than the private aggrandizement of politically successful groups. This generality requirement was incorporated in the Constitution of the United States through the Due Process Clause of the Fifth Amendment,