Eminent domain, presidential politics, and you
“Eminent domain is wonderful.” This is a recent quote from presidential candidate and billionaire developer, Donald Trump. It’s a position he’ll have to defend within and without his party.
If you own real estate, or just want to understand this political issue, you should know three things about eminent domain: How it worked for generations as intended by the Framers, how local governments have misapplied it, and more recently, how the Supreme Court rolled property owners under the bus. Please stay with me because the media are not doing a good job of explaining this issue.
Historically, eminent domain has been a power granted to the federal government as an interpretation of what is known as the “Takings Clause” in the Fifth Amendment of the U.S. Constitution. The Fifth, as short as it is robust, is chock-full of protections for citizens, including the takings passage: “. . . nor shall private property be taken for public use without just compensation.” For generations, these twelve words were deemed to mean best use for all of the public, like to build a railroad or highway through your property, or cover it with backwater from a dam. You could dispute the offered compensation, but not the condemnation.
More recently, local governments have appropriated this power for themselves in favor – directly or indirectly – of one private party over another by exchanging “public use” for “public needs.” If your property is in the way of a city-approved private development, they might declare that it serves the public needs to condemn your property if you refuse to sell. Until 2005, a property owner could stand behind the “public use” defense from an overreaching municipality. But in the shocking Kelo v New London Supreme Court decision the majority contrived a position that diluted the Framers’ intention for eminent domain into the position that simple “public needs” justified the taking of private property.
Writing for the majority, Justice Stevens extended the “takings” interpretation to states with “…broad latitude in determining that public needs justify the use of the takings power.” For the minority, Justice O’Connor wrote: “Today the court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner ... nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Fortunately, since Kelo many states have wisely taken legislative steps to restore the Framers’ intention for the Takings Clause and reaffirm the rights of property owners in their jurisdictions. If your state hasn’t, I encourage you to find out why.
Now you understand why Mr. Trump’s affinity for the 21st century version of eminent domain is so controversial and will likely haunt him throughout his run for president.
Write this on a rock - Eminent domain for public use is constitutional; for public needs – not so much.
