An Inadequate Defense of Eminent Domain

It’s not every day that you encounter a headline like, “Progressive Professor Defends Eminent Domain for Corporate Gain.”

In a recent op-ed for The Huffington Post, Assistant Director of IJ’s Center for Judicial Engagement Evan Bernick drew attention to a recent essay arguing that the use of eminent domain for private gain is perfectly constitutional.

Professor Jedediah Purdy recently penned a book review claiming that libertarians, specifically George Mason law professor Ilya Somin, offer a less-than-convincing critique of eminent domain which, if applied on a large scale, would lead to the “the destruction and burial of the New Deal.” The book under scrutiny was Somin’s  The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, which criticized the landmark Supreme Court case in which IJ attempted to defend residents of New London, CT., from a development corporation that exercised the government’s power of eminent domain to destroy a working-class neighborhood.

Purdy claims to be skeptical of using eminent domain to aid predatory corporations, but rejects Somin’s critique of Kelo. Bernick’s piece challenges Purdy’s premises, saying:

“Purdy is wrong about the Fifth Amendment, wrong about judicial review, and wrong about the supposedly dire consequences of the approach advocated by Somin and other libertarians who argue that judicial engagement–fact-sensitive, conscientious judicial truth-seeking into the constitutionality of the government’s means and ends–is required whenever plausible abuses of government power are alleged. Despite his best efforts to paint Somin as a radical whose ideas would bring about a dystopic state of affairs in the future, Purdy manages only to demonstrate his own willingness to create such a state of affairs for real people today.”

Bernick also addresses the claim that the Framers of the Constitution left property rights at the mercy of the political process. He points out that the Fifth Amendment’s Takings Clause is a limitation upon the government’s power to take private property, and that judicial engagement—impartial, truth-seeking judicial review—is required to keep the government within constitutional limits.

“What, then, was the Takings Clause in fact designed to accomplish? The Framers, following John Locke and Sir William Blackstone, were indeed deeply attached to property rights. As Professor Richard Epstein has written, the Framers believed that the protection of property–understood in the broad sense of “lives, liberties, and estates” –was the primary purpose of government and sought to ensure that the government “would not pass laws that encroached upon the property rights that government was designed to protect.” For Founding-era jurists, taking property from A and giving it to B for B’s own benefit was a paradigmatic example of illegitimate government conduct that did not merit the name of “law.” Reading the Takings Clause against this backdrop illuminates its true purpose: To ensure that the power of eminent domain is exercised only to better enable the government to protect the lives, liberties, and estates of all–not simply to distribute benefits to a favored few.”