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July 14, 2005

Local Government’s Nuclear Option – Part 2

Kevin E. Dayhoff

Before 1954, eminent domain issues were primarily focused on the government’s ability to lawfully obtain private land for public projects and just compensation. Since 1954, in the current era of the eminent domain mess, the issue has been extended to deal with the expansionist liberal Supreme Court’s interpretation of the definition of public use to include: “highest and best use” private sector economic development.

According to an Associated Press article in 1998 by Ted Anthony, when the City of Hurst, TX, used that state’s eminent domain law, the city bought out 117 homeowners and took the remaining 10 holdouts so a shopping mall could expand. This is – and isn’t – entirely unprecedented. "It’s unique in that it involves a shopping mall," says Michael Allan Wolf, a professor of law and history at the University of Richmond who studies property law. "It’s not unique in that it involves a displacement of persons for what’s perceived as economic betterment of the community."

Since the future looks so absurdly Orwellian, perhaps there is no better time to add a little levity and literature to the matter. After all, we have to laugh at ourselves whenever we can. The alternative is dire.

Did you read “The Hitchhiker’s Guide to the Galaxy?” Pull out a copy the next chance you get. Turn to Chapter 3 where a section reads - and I quote:

"People of Earth, your attention please… This is … the Galactic Hyperspace Planning Council… As you will no doubt be aware, the plans for development of the outlying region of the Galaxy require the building of a hyperspatial express route through your star system, and regrettably your planet [Earth] is one of those scheduled for demolition. The process will take slightly less than two of your Earth minutes. Thank you… [As] Uncomprehending terror settled on the … people of Earth… Panic sprouted … desperate fleeting panic, but there was nowhere to flee...

“Observing this, the [Council] … said: ‘There's no point in acting all surprised… All the planning charts and demolition orders have been on display in your local planning department … for fifty of your Earth years, so you've had plenty of time to lodge any formal complaint and it's far too late to start making a fuss about it now.’"

Back to the absurd here on Earth, the concept of eminent domain can be traced back to biblical kings and later the Greeks. It is my understanding that the Roman Empire seized the private property of citizens for the purposes of projects of greater public good such as roads and the aqueducts. In the case of the Romans, the greater public good was to maintain world domination.

The Romans occupied and ruled England from 43 AD until shortly before the collapse of the Roman Empire in 476 AD. During their rule of England, the Romans seized whatever land they needed to promote public good.

The Romans left behind a country that used Roman laws and customs. The issue of a sovereign ruler easily seizing one’s property for the state’s use was addressed in a provision of the Magna Carta, which protected freeholders from being randomly ‘disseized.’

In 1544, the English Parliament gave municipal governments the power to take private property for roads and water supplies upon just compensation. The concept was, no doubt, brought to American from England.

It was not until the 17th century that the term “dominum eminens” was introduced by a Dutch attorney, Hugo Grotius in 1625. Mr. Grotius wrote in “De Jure Belle et Pacis”: "the property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property…for the ends of public utility…But it is to be added that when this is done the state is bound to make good the loss to those who lose their property…”

Before the U. S. Constitution, eminent domain was the subject of a great deal of ink and tension as witnessed in the Federalist Papers No. 22 and 78 by Alexander Hamilton, and No. 47 and 54 by James Madison. Never the less, the Articles of Confederation and many of the states’ revolutionary constitutions, neglected to address the taking issue.

It is important to understand that the U. S. Constitution does not grant the states the power of eminent domain. The Constitution limits the power of the government in the 5th and 14th Amendments, which state that the sovereign may not take private property for public use until it has justly compensated the owner for the loss and also guarantees due process for the private property holders before such a taking occurs. In particular, the Fifth Amendment of our Constitution states that “no person shall be . . . deprived of . . . property without due process of law, nor shall private property be taken for public use without compensation.”

It was generally understood at the time, that the capability to exercise the power of eminent domain was the exclusive dominion of the legislative branch.

The usual process includes passage of a legislative resolution to take the property by declaring a public need, establishing an appraisal process, negotiating an offer, and ultimate acquisition. If the owner is not satisfied, the property owner may sue the government for a court's determination of just compensation. The government, however, becomes owner while a trial is pending and the amount the government offered is deposited in a trust account. Public uses were generally accepted to include schools, roads, parks, airports, dams, reservoirs, public housing, hospitals, and public buildings.

In part three, we’ll explore the post constitution history of eminent domain; the expansion of Eminent Domain into the modern day concept of highest and best use economic development takings; a brief introduction to the Kelo decision for context and where we go from here.

I’ll bet Starbucks makes better coffee that you can make in your home. And they’ll bring jobs to your neighborhood, too.

Kevin Dayhoff writes from Westminster. E-mail him at:

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