Answering Those Who Defend Eminent Domain Abuse

October 2002

Answering Those Who Defend Eminent Domain Abuse

By Dana Berliner

I’m sure that all our readers have noticed the dramatic changes in recent years in the treatment of eminent domain for the benefit of private parties. The world has changed. People fight back in court, challenging the taking of their homes for other private parties and, increasingly, win. More and more, citizen activists succeed in fending off eminent domain in the political arena. And, finally, the media has begun covering the issue on a regular basis.

With all of this popular attention, it is not surprising that the forces behind eminent domain abuse are speaking up publicly, trying to come up with excuses for their gross misuse of government power. Here, I address two of the most common defenses we see popping up.

“Although one would think that private developers and retailers would care deeply about property rights, in fact, many seem not to believe in them at all.”

“The law allows cities to condemn property for economic development. We are doing nothing illegal.”

This is the favorite excuse of developers who benefit from condemnations. It translates as, “If the government says we can take someone’s property, then there’s nothing wrong with it, and anyway, we mostly get away with it.”

There are so many errors in this position that it is hard to know where to begin. One problem of course is that such condemnations are increasingly found to be illegal, and while there may be statutes permitting the use of eminent domain for private business, there is always a constitutional limitation against taking property for private use.

“Might makes right,” they say. “Whatever the government allows us to do, it’s OK to do.” But there is a deeper problem.

Although one would think that private developers and retailers would care deeply about property rights, in fact, many seem not to believe in them at all. The attitude of someone who defends such condemnations on the grounds that they are legal is that there are no property rights. People don’t have a moral right to stay in their home, or run their business unmolested. Instead, to such people, property is a government benefit like a building permit or a financial subsidy. This kind of attitude ignores any issue of right or wrong and simply turns eminent domain into a pure issue of political power. If you have the power, you get the property, and any moral problems can just be ignored. Instead, developers and other private businesses seeking to confiscate someone else’s property should think long and hard about the moral implications of such seizures, not about whether the law will allow them to get away with it.

“This isn’t about eminent domain. This is about a community’s right to determine its future course.”

This may be the most offensive of all, though it’s hard to play favorites.

Communities have no rights–not under natural law, not under common law and not under the Constitution. So let’s translate this statement into English. First, Joe and Joan have the right to decide that their neighbor Sam has to move out of his house. Second, Joe and Joan also have the right to decide who can move into the property next door. Now, neighbors have always had the right to place certain outer limits on someone else’s use of property–preventing noxious smells, dangerous conditions and extreme noise. What they have never had is the right to eject ordinary, inoffensive neighbors because they would prefer wealthier ones.

Yet this is always what the “community” wants. The “community” wants to be more upscale. It figures it can get there by sacrificing some of its members, forcing them to move when they don’t want to, forcing them to accept less money than they would sell for and forcing them into court if they aren’t happy.

It was to prevent just such abuses, the tyranny of majority over minority, that the Founders wrote our Constitution. And it is sickening that fellow home and business owners would seek to shamelessly violate the Constitution in order to get rid of their neighbors.

Dana Berliner is an IJ senior attorney.