Eminent Domain and Private Property

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He slammed his fist on the table as he relived the anger of losing his house and business to eminent domain. His wife was startled as the dishes bounced on the jostled table, and tears welled up in her eyes. They felt violated, robbed, abandoned, and fearful. “How can this happen in America?” he asks in disbelief.

Eminent domain is a practice that has been abused at all levels of government. However, eminent domain does have proper use. It is important to learn how to recognize government abuses and identify solutions and the proper boundaries of governmental jurisdictions.

The kitchen table story above has occurred tens of thousands of times to American citizens. Homes and businesses have been condemned or seized through the process of eminent domain and handed over to private developers. With the taking of private property, individuals loose a portion of their live and liberty –the life and liberty they spent to obtain that property.

Takings Clause in The Fifth Amendment: Protecting Private Property

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

Property is the fruit, or result, of what each person has done with their life and liberty. Taking property without compensation is the same as taking life and liberty because life and liberty were spent to obtain that property. Using life and liberty to obtain property is exercising the right to pursue happiness. That is why this provision in the Fifth Amendment is critical to maintaining liberty.

This type of provision appeared in early Roman law and was also incorporated in the Magna Carta. Ancient kings and emperors, who considered the lives and property of their people to be subject to their whims, often exercised their sovereign powers to expropriate or confiscate the land of their subjects. This provision was inserted into the Constitution to protect American citizens from this type of abuse.

Property is one of our primary unalienable rights, and protecting property is the primary purpose for establishing government in society. The French statesman Frederic Bastiat put it succinctly:

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.[1]

John Adams expressed the importance of property when he said:

Property must be secured or liberty cannot exist.[2]

The Fifth Amendment secures property by limiting government officials from taking property without recognizing who it belongs to and its value. This subject is further examined in the book, Behind the Bill of Rights: Timeless Principles the Make it Tick.

Often referred to as the “takings clause,” this provision can rightfully be applied when a significant public benefit can be realized by taking private property for public use. The “takings clause” can also  go into effect if government action results in the loss of property value, whether it be real estate, intellectual property, or any other thing of value that you possess. In all of these cases, government is under obligation to provide just compensation to the individual for the loss of property.

In 1923, a minimum wage law that required an employer to pay a specific wage, regardless of the earning ability of the employee, was held to be unconstitutional under this provision since it took private property for private benefit in violation of this clause. It was reversed in 1937 by the Supreme Court under the influence of New Deal policies.

In 2020, many state governments commanded businesses to close in an attempt to slow the spread of Covid-19. Whether governments had the authority, or if there was a need to do so, could be argued. Right or wrong, this was a “taking” of the property that businesses expected and needed to earn. The Payroll Protection Program and other payments to businesses could be considered “just compensation” for taking property. Because the actions, right or wrong, were done in the name of the public good, it was incumbent upon the public, through government systems, to compensate those businesses.

In addition to “just compensation,” the taking of property can only be used for “public use.” In the 1990s, there was a trend to take property from one private party through eminent domain and transfer that property to another private individual. This occurred in Mesa, Arizona, in the early 2000s when the city decided to take the property owned by Bailey’s Brake Shop, a moderately rundown business on the corner of a busy intersection. The city intended to condemn the shop and transfer the property to a local hardware store looking for a more desirable location.

The city of Mesa justified the taking as public use by making the case that the new hardware store would be more attractive than the thirty-year-old brake shop and would likely bring in more sales tax revenue. The city argued that both reasons were better for the public, so the taking was for public use. On October 1, 2003, the Arizona Court of Appeals unanimously struck down the City of Mesa’s use of eminent domain. Judge John C. Gemmill wrote:

The constitutional requirement of “public use” is only satisfied when the public benefits and characteristics of the intended use substantially predominate over the private nature of that use.[3]

Even though the Bailey Brake Shop case was argued as a violation of the Arizona Constitution, not the U.S. Constitution, it became a landmark case in helping to prevent similar misuses of eminent domain (taking) in Arizona and throughout the entire country.

If, as an individual, any one of us took property from our neighbor and gave it to another neighbor, we would be tried for theft and incarcerated. If our entire neighborhood voted to take a neighbor’s property and give it to another, would it be any less of a violation? We do not have the right to individually or collectively take from one individual to give to another.

If we are to operate under the premise that government derives its authority from the people, then government does not have the right to take from one to give to another. We cannot give that which we do not own. This is blatant theft.

The abuse of eminent domain violates fundamental natural law, alienates us from the unalienable right to property and creates an environment in which the two citizens or entities do not have equal protection under the law.

The protection of these three principles; natural law, unalienable rights and equal protection are all superior to the opinion of any court and are why governments are instituted in the first place. The creation can never overrule the principles of its creator. In this case the creator is “We the People”. Before property can be taken without just compensation, the individual must be in violation of the law and must be afforded a trial by a jury of his peers and found guilty.

If a city condemns a property and seizes it under the guize of “due process”, does that same logic hold true to a life as well? Can government administratively take a life? If government can violate one natural right, it opens the door to violate all the others.

There is no constitutional authority to take private property for anything other than public use, and under that one and only condition, just compensation must be made. The proper test of eminent domain is this—the results of the taking must be for public use, such as public roads. If the property is sold or given to a private entity, it is not a proper use of eminent domain.

Recent attempts to expand Eminent Domain

In the 2005 Kelo v New London ruling, the Supreme Court said that taking from one private citizen and giving to another private citizen under the guise of “economic development” is “public use.” No property is safe with this logic. Following the court’s ruling, any home can be taken to build a bigger one. Any business can be taken for another business at a bureaucrat’s whim.

Thankfully, more than 40 states rushed to pass strong eminent domain restrictions in the wake of the Kelo decision. We are a nation of laws, not the whims of men.

Our form of government is specifically designed to protect individual rights, but these rights will be protected only if We the People, enforce the boundaries that we have drawn around government in the form of our National and State Constitutions.

[1] Frederic Bastiat, The Law, 1850

[2] John Adams, Defense of the Constitutions of Government of the United States, 1787

[3] John C. Gemmill, Bailey v. Myers, 1 October 2003