An Assessment Eminent Domain and an Analysis of Broad Interpretations vs. Literal Interpretations

Department of History, Humanities, & Government

For many years the judiciary system has become a medium for the making of policy. Major court cases have dictated the outcome of many issues that have been brought before the court. Eminent domain and the right to privacy are not two subjects easily combined, but will be used in this thesis to discuss the matter of constitutional concepts that exist in a variable state. In observance, how the founding fathers may have interpreted the definition of eminent domain and the right to privacy may or may not necessarily be interpreted the same way by the Courts.

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

-James Madison, The Federalist Papers No. 51


It has been the challenge of all just and fair governments to create a system capable of both governing the masses for the purpose of maintaining order and finding the necessary boundaries needed to keep those entrusted with power from abusing their position and authority. The founding fathers of the Constitution of the United States of America spent one-hundred and sixteen days (Bernstein, 2004) attempting to build a system of checks and balances to ensure the protection of the governed from the government. Furthermore, the system was also built to allow those entrusted with power to have the authority to perform actions their wisdom judges as productive and fruitful to the community at large.

The founding fathers, being both men and mortal, were not capable of seeing the vast, complex organism the society they were creating would someday become. They did not have the foresight to conceive a world capable of weapons of mass destruction, scientific endeavors of unlimited proportions, or all the possible future ethical states the American people could exist in. Nevertheless, the standards the Constitution holds and the values it possesses are capable of being interpreted within the current way of life. One of the Founding Fathers’ concepts that is being evaluated in twenty-first century terms is the constitutional component of eminent domain and the interpretation of it constitutional foundation.

Thesis Statement

This thesis is an examination of eminent domain as pertaining to the Founding Fathers’ understanding in the terms of current and contemporary perspectives. More specifically, this examination will be on the concept of eminent domain, which is the inherent power of the state to seize private property, and the current conflict of narrow vs. broad interpretations.

This topic was chosen due to the fluctuating nature of the subject and the divide among current leaders in the interpretation on the matter. The examination will include a look at the court case decisions, Supreme Court Justices’ opinions, and an assessment of what the Framers of the United States Constitution had to say about the subject and what was its original intention. The examination will also observe which state eminent domain currently exist in; a trend towards narrow or broad interpretation.

The method that will be used to explore eminent domain will be an objective assessment of current opinions on the matter from Supreme Court justices, experts of the topic, and literature reviews. This thesis is not a subjective opinion on eminent domain, but is a collection of evidence that evaluates the opinions and decisions of modern leaders. However, evidence does show that there is a trend towards a broad interpretation of eminent domain and the suggestion that eminent domain is being use to support large corporations and specific individuals for various financial reasons. The evidence does not invalidate the importance of eminent domain and its position in American society, but supports the argument for reevaluation of the issue for improved clarity and understanding.

Purpose of Paper

The purpose of the paper is to show the present development of the use of eminent domain and its main interpretations in the context of various situations and time periods. Its purpose includes the necessity to clarify terms that surround the eminent domain topic, such as “taking clause” or “public use”. A subsequent section will expand more on the definitions of terms and phrases. The first sections of this paper will study the idea of eminent domain and the reasoning for its existence founded within the Constitution and the words of the Founding Fathers.

An assessment of recent court cases on the subject will also be explored to analyze the current interpretation of the topic of eminent domain. The purpose of midsection of the paper is to explain the law cases that decided the precedence for the use of eminent domain. The court cases main function is to illustrate the various situations were eminent domain was implemented, brought to court, and decided by Supreme Court justices. By doing this, an observation of the justices’ rationale, the diverse time periods, and the change in leadership can show what influenced the validation or invalidation of the use of eminent domain.

The purpose of last sections of this paper is to show eminent domain’s various forms on an international and social level. It will expand on the concept of eminent domain found in other countries and on other levels not explicitly established in general examinations. The purpose is to answer the question of whether or not America is the only country faced with the dilemma of taking private property from private citizens. As well as the assessment of the interaction of eminent domain and religion and whether or not these interactions fall under the guise of separation of church and state.

“Property is surely a right of mankind as real as liberty.”

-John Adams, Defense of the Constitutions, 1787

Definition of Eminent Domain & Related Terms

Eminent Domain

One of the cornerstones of a free society is the system of private property. The idea of economic liberty is founded not only in the doctrine of free enterprise but also on the principle that people have the right to accumulate the fruits of their earnings. Past discussions have asked if the government has the power to arbitrarily seize a person’s wealth or property, whether a person can truly be considered free in an economic sense (Garner, 1975). Conflicts arise when discussing the right to hold private property and writing in the Constitution itself the ability to seize said property, i.e. the notion of eminent domain. That is why the framers deemed it critically important to protect people’s property from governmental assault through their adoption of the Fifth Amendment, which reads in part as follows:

“No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

- Fifth Amendment to the United States Constitution

Eminent domain is defined by Black’s Law Dictionary as, “The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character. In the United States, the power of eminent domain is founded in both the federal (Fifth Amendment) and state constitutions. The Constitution limits the power to taking for a public purpose and prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken.”

The original purpose of eminent domain was to allow government officials to obtain property to help establish places to aid in the management of the government (Olivetti, 2003). This idea being that in order to run the government it would need courthouses, jails, and other government affiliated structures. During the early years of the American colonies and what would eventually become the United States, there was no need to invoke the power of eminent domain with the exceptions of roads and mills. However, during the industrial period in America as railroads, factories, and commercial industries developed, eminent domain also developed into a new, more prevalent role.

The process of eminent domain usually proceeds in this manner: When a body of government desires to obtain privately held land, it first attempts to purchase the piece of property at fair market value. If it is not agreeable to the private property owner to sell their land, it is at this point the government files a court action to exercise their authority under eminent domain. It is then the government’s burden to demonstrate that the negations were in good faith and that the use of the property is for public use and general welfare. If the government is successful in its argument measures are taken to assess the fair market value of the property, which the government’s obligation to the owner. If the owner is noncompliant and does not wish to sell, both sides are allowed to appeal the others decision. This process follows the basic understanding of eminent domain.

The current definition of eminent domain has reached a broader interpretation, both in courts and by certain experts. It is seen as an economic tool used to improve economically dead areas and “is a vital tool, and in some cases the only tool left when it comes to improving a blighted area, transforming dangerous, abandoned and oftentimes drug-infested neighborhoods into modern mixed-use retail and residential complexes that not only create new jobs but also generate tax revenue” (Boulard, 2006). This statement coincides with the summarized view that without the tool of eminent domain, America would not have been able to grow and progress during the time of industrialization. Railroads could not have been built without the land seized and given to it to be built upon.

It is at this point questions are presented that ask if the almost sacred institution of private property is as stated “sacred” and there is an understanding that eminent domain is a “necessary evil”, why does conflict occur. If for the sake of economic growth and public welfare, eminent domain is justified then why does it have the stigma of evil it now has today’s world? One could conclude that the state of eminent domain has passed its expiration date; that society, due to corruptness and greed, can no longer be trusted with the right to governmentally seize its citizens’ property even with “just compensation”?

It should be understood that there is precedence for the government to seize an individual’s property legally outside of the eminent domain. The government is authorized to obtain a person’s property through the due-process clause of the Fifth and Fourteenth Amendments, only after following the principles of the due process of law, specifically notice and hearing. This only applies, however, when a person is being accused of defrauding the federal government. Before the government can punish a person through incarceration and fines i.e., deprive a person of liberty and property, it must provide them with both a notice and a hearing, where they are entitled to contest the charges against them (Bernstein, 2004). This illustrates the notion that when the government acquires an individual citizen’s property it is not necessarily a questionable act, but an act towards public welfare.

There are two conditions the eminent domain clause of the Fifth Amendment must meet in order for eminent domain to be legally justified. The first is the “public use” stipulation arguing that in order for land to be taken for public use it must be for the welfare of the general public. The second condition is the “just compensation” clause that demands that the individual whose land has be taken by the government (state or federal) must be compensated fairly to elevate the pain of lost property. Together these two concepts as called the takings clause and embody the conditions eminent domain must meet to be considered a constitutionally supported act. .

The Takings Clause

As the examination of eminent domain continues another term that requires clarity is the term takings clause. In order to understand eminent domain and the court cases that surround the issue the term takings clause must be explained due to the frequency of the term’s use. The takings clause is the culmination of both “public use” and “just compensation” powers found within the Fifth Amendment. The takings clause of the U.S. Constitution states basically:

“nor shall private property be taken for public use, without just compensation.”

The takings clause finds its foundation within the Magna Carta, section 39. The difference between England’s compulsory purchase clause of the Magna Carta and the takings clause of the Fifth Amendment is that England did not require compensation for land acquire by the government, but did require compensation for personal property.

Public Use

While the “public use” and “just compensation” limitations serve as a check on the power of eminent domain, over time the interpretation of the eminent domain section of the Fifth Amendment has been broadly understood, especially with respect to the concept of “public use” (Malloy, 2007). The term “public use” has become the one of the dividing factors in how one perceives the eminent domain clause of the Fifth Amendment. Justice Stevens commented on the usage of “public use” and its changing definition in his Kelo v. New London opinion:

“Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society.”

The general and cliental definition of “public use” is anything that contributes to the general welfare and prosperity of the whole community. The more in-depth definitions of “public use” are divided into two sides. The first is the literal definition of “public use” as that which is being used by the public, and the second being that “public use” is defined as that which improves public welfare. The second definition normally defining improvements as those that happen by proxy such as the building of arenas to improve the economic state of the surrounding area and the construction of a company building that will create jobs.

Although the Supreme Court continues to show support to a broader interpretation of “public use”, there is a continued trend of support of a more literal view of the clause; not only by dissenting Justices themselves, but with the public as well (Garner, 1975). Summarizing the main view of critics of eminent domain the current use of eminent domain is viewed as being abused and requires more detailed understanding. Public opinion, however, has not deterred the Courts from their broader understanding of eminent domain and the “public use” component.

In the Court’s defense, they have stated that it is up to the judicial branch to decide whether or not the eminent domain contradicts other rights in the Constitution. However, the Court agrees that it is not their job to make policy based on their decisions. The Court has also stated that it is not up to the legislature to determine, when questioned, if an act of eminent domain will be condemned or protected by the defined term of “public use.” (United States Congress, 2005) For the idea of “public use” the question raised it this: Has the concept of “public use” been misinterpreted to enhance the benefits of private individuals, or is it that the understanding of “public use” and “public welfare” too vague? These questions will be address at the conclusion of this paper.

Just Compensation

The “just compensation” clause of eminent domain is not as severely examined as the “public use” clause. It should be noted that in the context of the cases pertaining to the subject of the “just-compensation” clause it is the abuses of the clause that are being examined more thoroughly then the situations that have used the “just compensation” clause properly. Courts cases Kelo v. City of New London (2005) and Berman v. Parker (1954) both are used as examples of how “just compensation” has been observed as being easily abused. These cases have stated in their decisions and opinions that the phrase “just compensation” can be considered as being abused in modern times in a way that the word “just” has been interpreted too broadly (Olivetti, 2003) generally defines just compensation as:

“The general standard thus is the market value of the property, i.e., what a willing buyer would pay a willing seller. If fair market value does not exist or cannot be calculated, resort must be had to other data which will yield a fair compensation.”

Therefore the definition of just compensation fall under two categories. The first defines just compensation as the assessment of property at the current market value. The second defines just compensation as merely the state of some form of compensation; this factor existing because the owners of the property are not seemingly in a position to dispute the offer.

The first problem created when examining the definition of the “just compensation” clause is what is considered just compensation. It can be argued that asking if just compensation is just is as subjective a question as asking what should be considered “public use”. When removing an owner from their property the question brought forward is whether one can measure compensation on something a sentimental as private property.

Judicial Precedence: Major Eminent Domain Cases

It is considered a prevalent view of many that eminent domain be viewed by strict parameters due to the gross violations of property rights (Malloy, 2007).These individuals believe that first, there has been some misinterpretation of the Fifth Amendment and second, that these misinterpretations have led to abuses that have consequences which benefit large corporations at the expense of individual homeowners and local communities i.e. Kelo v. City of New London (Oyez, 2005).

Many dealings involving eminent domain have justly compensated those whose land was taken as a result of “public use”. In the context of the court cases pertaining to the subject of the eminent domain it is the abuses of the power of the government that is being examined more thoroughly then the situations were it is used properly.

As the following topics examine eminent domain in the context of the courts and law it should be noted that the Fifth Amendment originally only applied only to federal government, not to state government. However the interpretation of the Supreme Court (United States Congress, 2005) suggests that through the due-process clause of the Fourteenth Amendment it incorporates each amendment within the Bill of Rights to each state individually. Therefore the Fourth Amendment applies the restrictions of the Fifth Amendment to the states (United States Congress, 2005).

The information will assist in understanding the Supreme Court Judges’ use of logic in their decisions and opinions. The following cases will be discussed in chorological order in order to examine the progression of logic used by the Supreme Court judges and to examine the time period the case took place in order to observe any historical influences to their decisions.

Berman v. Parker, 348 U.S. 26 (1954)

In 1954, the U.S. Supreme Court decided on a major eminent-domain case, Berman v. Parker. In Berman v. Parker (1954), the case will set precedent for Justice O’Connor’s argument in the Kelo opinion. The case came from D.C.’s “urban renewal” plan in which the government condemned slum areas in Washington’s community. The process included the removal of citizens from blighted areas of the District of Columbia. Although the Washington D.C. local government was compensating people for the takings, many of the removed property owners protested to being forced to sell their homes.

Their argument was that the government’s “urban renewal” plan did not satisfy the requirements for an eminent domain order, nor did the power of eminent domain extend to such government projects as “urban renewal.” In addition a department store was in the designated area. The store owners argued that the store itself contradicted the idea of “urban renewal” due to the fact that the store did not constitute blight. The U.S. Supreme Court found in favor of the government. The Court’s argument of the decision was that the purpose of “urban renewal” was a justifiable governmental act:

“Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.” (Oyez, 1954)

The Court held that eminent domain could be employed for “urban renewal” even if the title to the property would ultimately be received by private hands rather than be held by the D.C. government:

“Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” (Oyez, 1954)

The Supreme Court’s decision in the Berman case concluded that the Supreme Court can find terms such as “urban renewal” legitimate as a basis for an eminent domain order. Those who believe in the literal interpretation of the Fifth Amendment consider terms similar to “urban renewal” contradict the original understanding of the takings clause of the Fifth Amendment. (Olivetti, 2003) This is in agreement the future argument of Justice O’Conner in her decision in the Kelo case. Oppositely, the Court argued that the use of eminent domain require a broad and general interpretation of the taking clause. In the opinion of the Kelo case Justice Douglas commented on precisely on this area of discussion:

"If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly." (Oyez, 1954)

Douglas noted the issue of taking from one businessman for the benefit of another businessman, presented by the landowners, was proven justifiable due to the fact that Congress created an entire redevelopment plan. The Supreme Court found that although there are properties that do not fall under the purview of “public use” their service under the function of the redevelopment plan therefore serve a public purpose. In the Supreme Courts ruling, Justice Douglas stated that the definition of “public use” expanded to include physical, aesthetic, and monetary benefits.

In examination, the decision of the Court to up hold the “urban renewal” redevelopment plan was most likely influenced by the fact that when the Depression ended it created a large number of slums across America. In of Berman v. Parker there is a section were the Planning Commission of the District of Columbia created and made publicly available the information gathered concerning the blighted area, reporting:

“Surveys revealed that in Area B, 64.3% of the dwellings were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating.”

Blight areas and condemned parts of various cities increased due to the depression and by 1954 the results were probably beginning to become more evident than ever. Another influence to the decision of the Berman case was the level of blighted area found within the District of Columbia.

Poletown Neighborhood Council v. City of Detroit 304 N.W.2d 455, 410 Mich. 616 (1981)

Twenty-seven years after Berman vs. Parker, (1954), the Michigan Supreme Court decided on another major case involving eminent domain in 1981, Poletown Neighborhood Council vs. City of Detroit. It should be taken into account that the Michigan Supreme Court decided this case not the federal Supreme Court.

In this case, the city of Detroit had seized thousands of homes, businesses, and churches in an area called Poletown, in order to allow General Motors to build a plant on the site. In a new argument, the city claimed that the “public use” limitation of the takings clause was met by virtue of the fact that the new plant would “create jobs” not only taking care of the “public use” limitation, but also the “public welfare” question. Those who contested the eminent domain order argued that the plant was not really a matter of “public use” because the property owners’ property was simply being taken from them to be given to General Motors. The Michigan Supreme Court ruled in favor of the city, there was an immediate outcry from the public. An article written by Timothy Sandefur entitled “This Land Is Your Land,” stated:

“Eminent domain, once limited to public uses like roads or post offices, was unleashed in the service of any well-heeled private party able to persuade the local government to see things its way. In the years since Poletown, eminent-domain abuse has exploded nationwide. As Ramesh Ponnuru has pointed out, powerful corporations frequently send representatives to lobby cities for “free” real estate. The city takes a neighborhood, usually of modest homes, and gives it to a developer or a megastore, and then rakes in the higher taxes. The only losers are the home- and small-business owners, who lack the political influence necessary to persuade local officials to respect their rights. Poletown has become the leading symbol of eminent-domain abuse.” (Sandefur, 2004)

Sandefur states that the original intent of the eminent domain section of the Fifth Amendment was to allow governmental power capable of seizing property for the explicit purpose of building courthouses and police stations for the continuing governing of the newly built country. The Poletown case is use largely in the defense of those who believe that eminent domain is being misinterpreted and broadly used. It is one of a number of cases that were the reasoning behind the Courts decision is not as easily taken as previous court cases have been.

Poletown Neighborhood Council v. City of Detroit is a highly criticized case because understanding the decision in terms of showing favor towards private individuals can be reasonably reached. Poletown is different from all other eminent domain cases because it is the first case allowing for condemnations of areas in the name of jobs and taxes. Although, the argument that taxes are a form of “public use” is extremely logical; however, an aspect of the decision required that a project's economic benefit be "clear and significant". Political analysts perceive the decision in Poletown Neighborhood Council v. City of Detroit as a decision that blurs the line between public and private uses (Michigan Law, 1981). They fear that many cases like this will be heard for many generations to come and speculate if the future of private property ownership is in jeopardy.

Kelo v. City of New London, 545 U.S. 469 (2005)

The most political, public, and most recent Supreme Court decision surrounding eminent domain is Kelo v. City of New London, (2005) (Oyez, 2005). Susette Kelo and the Dery family of Fort Trumbull, New London, Connecticut lived on a stretch of land that neighbored the Pfizer pharmaceutical plant as of 1998. The Dery family, down the street from Miss Kelo, has lived in Fort Trumbull since 1895; Matt Dery and his family live next door to his mother and father, whose parents purchased their house when William McKinley was still president. The city determined that the land of Fort Trumbull could be put to more productive use. The city then handed over its power of eminent domain to the New London Development Corporation (NLDC), a private body, to take the entire neighborhood for private development. The claim of “economic development was the justification of handing government assumed power to private entities (Oyez, 2005).

The case arose after New London began to implement a development plan to revitalize its economy. Adopted in 2000, the plan sought to develop a 90-acre area on the Thames River near Fort Trumbull State Park and Pfizer’s global research facility, which was supposed to open in 2001. The Court noted that New London was economically distressed and decided to redevelop this area as a way to attract and accommodate new businesses linked to the Pfizer facility. Consequently, it prepared and adopted a plan under a state statute that allowed the city to acquire, improve, and transfer property for new development (Oyez, 2005). That statute specifies how the city must implement these tasks and explicitly authorizes them to acquire property through negotiation or eminent domain. The plan proposed to develop the area for different uses, but did not intend for all of them to be opened to the public.

In the defense of the New London Development Corporation (NLDC) they had successfully acquired 110 parcels of land, but had to initiate proceedings to acquire the other 15 by eminent domain. Four of the disputed pieces of land were located on the site of the proposed research and development offices; however, 11 pieces of property were designated for unspecified uses. Fifteen property owners challenged the eminent domain claim, arguing that NLDC violated the Connecticut and United States constitutional bans against taking property for public uses without just compensation.

The trial court upheld some of the takings and overturned the others, which led both parties to appeal to the Connecticut Supreme Court (Oyez, 2005). The appellant court upheld all of the takings on the grounds that they were necessary to achieve the city revitalization goals for the economy. The dissenting justices agreed that the plan served a valid public purpose, but found the takings unconstitutional because the city failed to show how they would achieve those goals. Claiming that the City violated the Fifth Amendment’s takings clause, the owners appealed to the U.S. Supreme Court (Oyez, 2005).

The issue raised in the Supreme Court was whether or not the New London Development Corporation’s plan satisfied the “public use” requirement or whether it was simply a way to confer a private benefit on a particular party. In Kelo v. City of New London, (2005) the Court upheld the Connecticut Supreme Court’s ruling that New London’s plan served a valid public purpose and that the takings thus satisfied the Fifth Amendment’s public use requirement.

The Supreme Court held that the city created a plan that would benefit the public and that showed no preference to any “specific individuals”. Justice Kennedy joined in the majority opinion and wrote a separate concurrence. Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, wrote the dissenting opinion. Justice Thomas also wrote a separate dissent (United States Congress, 2005).

From Justice Kennedy’s point of view the courts must examine economic development takings more closely than other takings to determine whether or not the taking is in the best interests of the public or favors the benefit of private individuals. Kennedy believed that the Courts can do this without assuming that the government acted with malice. Kennedy was satisfied that the trial court in this case reached its decision after closely examining the takings and rejecting the contention that the city was acting only to benefit specific private interests (United States Congress, 2005).

In Justice Thomas’ separate dissent from Justices O’Connor and Scalia, and Chief Justice Rehnquist, he argued that the Fifth Amendment allows the government to take property only if the government intends to own the property or literally allow the public to use it. He urged the Court to reconsider its holdings based on the takings clause’s historical meaning.

He stated that the founding fathers viewed “public use” and “public welfare” to convey different meanings. He argued that, over time, the courts have moved away from the literal meaning of public use and moved toward the more modern and broad term of public welfare. Like O’Connor, Thomas concluded that the Kelo decision of the Court “rendered the takings clause meaningless by substituting “public purpose” for the Constitution’s “public use” language.” (United States Congress, 2005)

The main dissent was from Justices O’Connor and Scalia, and Chief Justice Rehnquist. Writing the primary dissent, Justice O’Connor argued that economic development takings violated the takings clause’s “public use” requirement, which, in agreement with Justice Thomas, she interpreted literally. She rejected the majority’s view that the constitution allows for the transfer of private property to private developers as long as the public gains some incidental benefit.

Justice O’Connor argued that it was for the courts, not the legislation, to decide whether or not the use of eminent domain was constitutional. O’Connor read from two preceding cases, Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984) as the basis of her argument. She made note of the fact that the takings in these cases were not for economic development but for eliminating harm: blight in Berman and land oligopoly in Midkiff. She stated that in upholding the Kelo takings,

“the Court should not have deferred to the city’s decisions; doing so rendered the “takings clause” meaningless and consequently removed any effective check on the eminent domain power.”

In oral arguments between the Court and Scott G. Bullock, the lead counsel for the defense of the Kelo plaintiffs, the issue of what standard eminent domain should function under was addressed. Justice O’Connor continued her stance that the Court’s interpretation of eminent domain followed the constitutionally set guidelines. The transcript of the oral argument concerning the state of emient domain’s interpretation reads as follows:

JUSTICE O'CONNOR: Berman spoke, in the opinion, said that the determination of the legislature about these things is virtually conclusive, that there is only the narrowest, narrowest role for the judiciary.

What kind of standard are you proposing we should get into here to second guess the public use aspect?

SCOTT G BULLOCK: Your Honor, it is clear that eminent domain power is broad, but there has to be limits, and that's what we are really talking about here.

JUSTICE O'CONNOR: Well, have we ever in any case from this Court said that the limit has been exceeded?

SCOTT G BULLOCK: In a few cases from earlier in this century, Your Honor, the Missouri Pacific case, the Thompson versus Consolidated Gas case, but this Court has recognized for over 200 years that there are limits on eminent domain power, that they cannot be used for private takings.

And that has been a consistent strain throughout this Court's jurisprudence--

Scott G. Bullock’s oral argument was the need to create distension between the term “public use” and use of the public. He argued that there is a difference between a takings for “public use” used to create instrumental means of commerce such as railroads and a takings for “public use” that improve the general welfare by proxy i.e. private development that may generate jobs and tax revenue. He argues that revenue is the reason the decision to uphold the takings could have detrimental effects. Since poorer neighborhoods do not produce as much revenue as a new development could this could create bad precedence for future eminent domain cases arguing in the name of improved revenue under a takings. The main point of Bullock’s argument is the effect a broad interpretation of eminent domain would have on poorer neighborhoods.

Religion & Eminent Domain

In an attempt to create a means to protect citizens from laws that create a burden on a person’s right to free exercise of religion the Religious Freedom Restoration Act, also known as RFRA, was introduce to Congress. The purpose of the bill was to examine a presented law under the strict scrutiny test to determine whether or not it violated the First Amendment right to free exercise of religion. The strict scrutiny test is a judicial review standard that examines a federal law under three elements. 1.) Is there is a compelling state interest? 2.) Is the law narrowly tailored? 3.) Is the law the least restrictive means to achieve its interest? The bill was passed but ultimately the Religious Freedom Restoration Act failed because it violated the Congress’ power to reinforce found within the Fourteenth Amendment. The conflict that developed was between religious practices that violated already established law, such as the Native America religious use of peyote, and the Religious Freedom Restoration Act itself.

Although the Religious Freedom Restoration Act was overturned it was replaced with the Religious Land Use and Institutionalized Persons Act. The bill is similar to the Religious Freedom Restoration Act in that it exists to protect individuals from laws that create a burden on a person’s right to free exercise. The two acts differ in that the Religious Land Use and Institutionalized Persons Act in aimed specifically towards the use of land concerning religious institutions and organizations and the religious practices of prison inmates. The Religious Land Use and Institutionalized Persons Act is surviving longer than the Religious Freedom Act because it is tailored towards specific religious aspects and not on religion as a whole.

In terms of eminent domain the Religious Land Use and Institutionalized Persons Act does not protect religious institutions from a takings. The act only protects religious land in the context of its use and the context of religious practices in prison. Specifically the use of the land under the act only identifies issues regarding zoning and land-marking laws that create a burden on the free exercise of religion. Based on the given argument of the article in Seton Hall Law Review, “Limiting the Scope of the Religious Land Use and Institutionalized Persons Act: Why RLUIPA Should Not Be Amended to Regulate Eminent Domain Actions Against Religious Property”, it is suggested that guidelines of the RLUIPA do not protect individuals from enacting its eminent domain power.

However, there is one court case that does support the idea that the RLUIPA protects religious property from eminent domain despite the argument given in the Seton Hall Law Review; Cottonwood Christian Center v. Cypress Redevelopment Agency. Cottonwood Christian Center wanted to expand their worship building and bought some land to accommodate their growing membership. When the Costco Company expressed interest in building a store in that area the local government began the preliminary proceedings for a eminent domain takings. The court found that the RLUIPA protected the Cottonwood Christian Center from an act of eminent domain on the grounds that the use of land was for the practice of their religious beliefs and therefore protected by the right to free exercise. The case is considered atypical and not a reflection on how the courts as a whole view the relationship between eminent domain and the Religious Land Use and Institutionalized Persons Act.

A summarization of the sources suggests that religion is not an exception when it comes to eminent domain. A church, temple, mosque, or any other religious institution’s property can be taken by eminent domain as longer as the use of the land is for public use and there is just compensation. The current logic is that although eminent domain has taken the religious institution or organization’s property it is not infringing on the citizens’ rights to free exercise of religion. They can still practice there religion in any manner they choose, but where they practice their religion is not a concern of the government.

Literature Review: Opinions on Eminent Domain

On interpreting the nature of eminent domain and the role it plays in modern society, there are two basic sides that support the argument for allowing the government the ability to take private property. The first is a more practical approach; this argument debates the economic necessity of eminent domain and supports its use in improving the surrounding area for the sake of economic improvements and community progress. It is under this argument that the idea of eminent domain must be invoked in order to ensure community progress is supported.

The second argument supports the idea that eminent domain can be used to develop neighborhoods that are considered condemned and destitute. The Supreme Court has established this concept as “urban renewal”, which is when the government creates a plan to re-develop an area of town, city, or community which is considered a “blighted area”. The court case that references “urban renewal”, the 2005 case Kelo vs. New London, which will be examined subsequently.

Garry Boulard of State Legislatures Magazine summarizes the various viewpoints of the economic use of eminent domain. Reporting on views from various expert opinions, Boulard concludes two things. The first being that eminent domain does have a purpose. Experts in agreement with this assessment state that eminent domain is a tool needed by the government in order to progressively change the community. The state in how eminent domain is perceived is Boulard’s second point. He quotes Gary Kovavic, a Los Angeles attorney who has been practicing eminent domain law for the past twenty-nine years who stated:

“Most of that time litigation has centered around things like what is the fair market value of the property or what is the fair market value of the improvements to the property," But in recent years, Kovavic says a growing percentage of litigation revolves around challenges to the practice of eminent domain. "That was almost unthinkable a generation ago.”

Boulard concludes that there is a trend to use eminent domain in terms not previously used in the earlier half of the twentieth century. His main point was in the examination of the Kelo vs. New London case and it’s impacted of state legislation. His observation was that the decision made by the Supreme Court in Kelo vs. New London has forced states to observe their own eminent domain practices.

In agreement about the tentative nature of eminent domain, Anne Barton who is the deputy director of the division of planning and development in Lowell, Massachusetts, suggest that guidelines be administered when using eminent domain for the purpose of “urban revitalization”. She argues that there is a minimum of five considerations that should be taken into account when justifying the use of eminent domain for the purpose of blight removal.

The first is the “design that respects neighborhood character”. This states that the difference between successful eminent domain development plans and unsuccessful eminent domain development plans is the approach of large change instead of small incremental changes with respect to the surrounding area. The second consideration is the idea of a community advisory committee. A committee is a necessary tool needed to assess which neighborhood development plan is the most applicable. The third component is the “fairness to property owners and tenants”. This component is used to ease the transition of a “takings”. It shows respect to the owner and tenants of the land by informing them of the development before information is leaked into the public.

The forth element is the “financial and political commitment to carry out the plan” component. This shows that commitment is necessary if a development plan is to be successful. The final consideration is the idea of “political accountability”. Barton believes that when a government body invokes a power as serious as eminent domain the government needs to demonstrate to their voters that the government is accountable to them. Barton believes these steps are necessary because of the nature of eminent domain and the power it gives to the government. She writes:

“Eminent-domain authority is one of the strongest powers given to government, and it is government's utmost responsibility to use it with extreme care and caution.”

When arguing against the use of eminent domain the argument concludes to two questions. The first being “does the “takings” fulfill the “public use” requirement of eminent domain?” and the second asking “does the “takings” fulfill the “just compensation” requirement of eminent domain?”

An article in the Columba Law Review, “The Uselessness of Public Use”, writes against the “public use” argument of eminent domain. Primarily, the use of “public use” found within the Kelo vs. New London Supreme Court decision. The writers of the review felt that the use of “public use” was broadly understood and should find a more narrow interpretation. The basis of their argument was that by interpreting the “public use” clause of eminent domain violates the state of private property and creates a danger towards it s stability. The writers also allude to the idea that the focus of “public use” has made the just compensation feature of eminent domain undesirable in situation were jut compensation would be the best possible outcome.

The argument against eminent domain under the “just compensation” clause is an argument not used as frequently as the “public use” clause. Creating an appeal against a takings under “just compensation” clause has proven to be a more difficult argument to make because the “just compensation” argument is essentially quantifiable. The majority of the time the disagreement is not what is just compensation, but how much is just compensation.

The St. John's Law Review article, “We Shall Not Be Moved: Urban Communities, Eminent Domain, and the Socioeconomics of Just Compensation” the writer identifies the Courts original view that just compensation was the basic value of the property taken. However, currently the general understanding is that the property taken will be assessed at the current market value. It is argued by the Courts that the purpose of just compensation is to put the individual:

“in the same position monetarily as he would have occupied if his property had not been taken.”

International Concepts of Eminent Domain

The United States is not the only country that has an eminent domain policy. The United Kingdom, New Zealand, and Ireland have named this policy “compulsory purchase” (Garner, 1975). The compulsory acquisition of land has become a major issue in Ireland. The Public Infrastructure Project has use compulsory purchase for what has been state as, “to go ahead for the common good” (Garner, 1975). The most widely discussed application of this refers to road improvement schemes and the Dublin Light Rail System project in Ireland. These are excellent examples of the purpose of eminent domain or compulsory purchase. The problem Ireland’s citizens are facing is the massive use of compulsory purchase; and since the compulsory purchase is being used for the common good there is almost no argument for appeal.

South Africa calls the policy “expropriation”, and the issue faced with “expropriation” is on a completely different spectrum than in the United States and Ireland. Since the end of South Africa's apartheid regime, whites in South Africa still own more than 80% of commercial agricultural land (Garner, 1975). South African President Thabo Mbeki has endorsed the expropriation of white-owned farms as part of his country's land reform program. President Thabo Mbeki’s land reform includes the surrender of white-owned land to be released to the government to redistribute land to black citizens (Garner, 1975).

Eminent domain powers in China are based on the fact that there are no property rights within China’s communist system. In an extreme example of issues surrounding property rights in China the term “nail house” is associated with the topic. A nail house in a piece of property the owner refuses to sell in the name of development. The most famous nail house is the nail house in Chongqing, China. The owner, Yang Wu, refuse to sell the home his family has lived in for the past three generations for the development of a shopping mall. The developers dug a 33 ft. deep pit around his home giving the appearance of a nail protruding out of a piece of wood. Despite the troubles, in the name of private property he refused to remove himself from his home for several months until they settled in 2007. As of March 2007 China passed its first modern property laws and follows similar American criteria for taken private property, mainly that the property must be use for public interests.

Current Developments

Another area of eminent domain that is developing is its use for the construction of sports arenas. The significant eminent domain issue is the condemnation of private property to be used by a private party, which is the contractor and sponsors of the arena. In 2006, a nearly $4 billion arena project was proposed to the local government in a neighborhood in Brooklyn, New York. The project wanted to use eminent domain to acquire land in an area that was not blighted or condemned.

The case has not been decided, but the situation posed an interesting question: If an area in not blighted and there is existing tax revenue how can the government justify an eminent domain takings for the sake of the construction of an arena. The issue of using eminent domain to develop a sport arena is the complex nature of how a sport arena constitutes as public use other than the ability to be used by the public for a price. By allowing huge commercial companies who associated with sports arenas to have the ability to invoke the eminent domain power through government creates the fear that private residential areas are in jeopardy.

The current development of eminent domain has changed in the latter half of the century. The Courts continue to have a broad interpretation of eminent domain. One of the reasons for the broad interpretations, as Justice O’Conner explained in the Kelo oral arguments, is besides the “public use” and “just compensation” guidelines of the Fifth Amendment what other guidelines should be tested in order to make an act of eminent domain justifiable. The current arguments are the same as the arguments given in the past. They ask whether or not there should be a more literal translation of the takings clause of eminent domain. The discussions also include the argument that under all the debates about eminent domain abuses the true purpose of eminent domain is being lost in the battle. There are a growing number of literary resources that demonstrate the economic necessity of eminent domain.

A limit of governmental power is the goal for property rights advocates. The difficult task ahead establish whether or not it is possible Attorneys for state and local governments are concerned that a conservative judgment will hinder the capacity of the public to revitalize their economies. Several sources examined within this paper have asked for a “rational basis” test that would be considerately respectful to a legislative program, plan, or law that endorses a reasonable local interest. The rational basis test being a judicial review that is lower than the strict scrutiny test, but is still capable of examining the if a legislative act should be rationally pursued.

President Bush addressed the concerns surrounding eminent domain and the power it gives to the legislative. The president issued an executive order stating that the Federal Government must limit its use of taking private property for "public use" with "just compensation" (United States Congress, 2005). Bush argues that although the constitution stated for the "purpose of benefiting the general public", he has ordered that eminent domain actions begin acting under more moderate conditions. President Bush limited the use of eminent domain stating that the use may not fall under the overly abused policy, "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken." (United States. Congress, 2005)


The policy eminent domain is displaying a trend of an interpretation with very few guidelines. Although the “public use” and the “just compensation” clauses are vital in determining the criteria of an eminent domain takings. There is still the question of perhaps these guidelines are not enough. As all systems have a history of abuses and exploitation it is only natural that many ask the court to create criteria that falls under more scrutiny then the current standards of assessment.

The problem with the justification of eminent domain is not just the use of the governmental power but which individuals are continuing to have their property taken from for the purpose of public use. Eminent domain has yet to be invoked on property of the upper class, the city officials, or even skyscrapers. It is always the working class or below. It is understandable if the argument for eminent domain is used for the purpose of “urban renewal” or “blight removal”. It is another situation when the majority of property that falls under eminent domain comes from the working class or lower class solely for the purpose of “redevelopment” or “revitalization”.

In Justice O’Conner’s dissent she commented on the implications derived from the Kelo decision. She wrote:

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.”

When arguing eminent domain it is only responsible to offer an alternative to eminent domain if the argument condemns the act. An alternative option to eminent domain utilization of land already owned by the government; by doing this the government does not put any undo burden on private property owners. This alternative is limited in the instances where the government does not own any nearby land or the governmentally owned property is situation in an undesirable location. There is also the possibility that the use of land owned by the government inefficient or extremely expensive.

An alternative to assist in the use of eminent domain would be to find property owners who would be willing to sell and assess whether the land is equivalent to the original choice. It would also add that some extent and a level of efficiency by negotiating with willing sellers instead of fighting unwilling property owners. By finding willing property owners the gains would outweigh the costs of the takings process of including litigation, enforcement, and opportunity costs, etc.

Senator Brownback of Kansas summed up the implications of the possible conclusion of eminent domain during the Senate Judiciary Committee hearings on the nomination of Judge John G. Roberts to the Supreme Court. Senator Brownback asked this to future Justice Roberts concerning the interpretation of eminent domain:

“Isn't it now the case that it's much easier for one man's home to become another man's castle?”


At the beginning of the paper several questions where asked. The first question asked, “Has the concept of “public use” been misinterpreted to enhance the benefits of private individuals, or is it that the understanding of “public use” and “public welfare” too vague?” To summarize the view of the courts, the term “public use” was concluded as to be interpreted to that which improves the public welfare. The improvements on public welfare include developments that would enhance the economic situation of public and improve the tax revenue of the community.

Public welfare was also concluded to include the improvement of areas identified as “blight”. Such broad concepts of what would benefit a society could easily fall into misuse. It would be wise of both the Courts and the legislation to remember that the act of eminent domain is not merely acquiring someone’s property, but someone’s home. It is not the intention of the owners of property that have fallen under an eminent domain order to stop or halt local progress, but merely defend themselves from a perceived threat.

If it is viewed that eminent domain has been abused this does not mean that a solution to eminent domain takings be solved by eliminating eminent domain for economic development across the board. Eminent domain is a vitally important tool. Many communities face the problem of absentee owners who hold decaying properties that stand in the way of redevelopment plans and other “urban renewal” plans. Again, the problem faced is whether or not such specific redeveloping plans like “urban renewals” fall under the purview of the takings clause of the Fifth Amendment. From one side of the spectrum if “urban renewals” were found to assist economic development and fell under “public use” (as currently upheld by the Supreme Court) then such takings to beautify certain parts of the community for the sake of aesthetics is legally and constitutionally supported.

The cases spoken about previously gave the illusion that eminent domain is being badly abused; nevertheless, it is not the purpose of this thesis to make that statement. The cases were used to show the development of the Constitutional concept of eminent domain not to report on the state of it. The cases used were found within the primary source documents on the subject of eminent domain and can not be escaped. There is a divide among informed individuals on the subject as to whether or not the eminent domain policy of the Fifth Amendment of the United States Constitution should be understood broadly or literally. If eminent domain is understood in a broader sense then there is no abuse being done to the eminent domain policy. However, if one interprets the Fifth Amendment policy to indicate a more literal meaning then there is disagreement with the decisions made in the past by the Supreme Court and its justices.

The necessity of eminent domain is not in question; it is criticized, but not questioned. What is being criticized is when given the power to acquire private property should procedures be taken to limit the level and frequency in which it is used? The previous court cases demonstrated how the Supreme Court widened the interpretation of the Fifth Amendment. Illustrating instances where the power of eminent domain went from the authority to build government buildings to seizing and redistributing property to alleviating “blight”. Then that power was extended again to seizing and redistributing property to improve the economy and the government’s tax base as was one of the purposes of the Poletown eminent domain order.

In Berman v. Parker, (1954) the term “urban renewal” entered into the debate of eminent domain. Arguing that a development plan of “urban renewal” was justified by the “public use” and “public welfare” phrases in the Taking Clause. In the Poletown Neighborhood Council v. City of Detroit, (1981) the Supreme Court upheld the eminent domain order under the argument that the chance to add additional jobs to the community outweighed the homes lost in the redirection. Kelo v. City of New London, (2005) proved to the Supreme Court private property rights can be defeated by a more general interpretation of the term “public use” Whatever the eventual verdict is on how to interpret eminent domain it would be wise to see what the founding fathers had to say on private property for both the government and the governed.

“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

-John Adams, Defense of the Constitutions, 1787