Eminent Domainist 23 Jun 2005

84 comments Latest by Mark

Today’s 5-4 ruling in favor of strengthening eminent domain has me a little shaken. I can’t believe that it’s getting easier for the government to take your property.

“The message of the case to cities is yes, you can use eminent domain, but you better be careful and conduct hearings,” said Thomas Merrill, a Columbia law professor specializing in property rights.

The problem is that hearings are simply hearings. Even a vote at a hearing doesn’t force the city council’s hand — they can do whatever they want; they have eminent domain. And the property owners will almost certainly be muted by the economic interests on the other end. AND I don’t think they even need to pay you fair market value.

I understand that the Fifth Amendment allows governments to take private property if the land is for public use, but projecting “public use” on a shopping mall seems to be a bit over the line. It’s easy to mask it with “urban renewal” and in many cases it may be just that, but wow, the burden should be getting higher, not lower, to prove the benefits of seizing one person’s private property to build someone else’s private property.

“The specter of condemnation hangs over all property,” O’Connor wrote. “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.”

Yes, unlikely, but now it’s more likely than it was before, and that’s sad. I can’t imagine what it must be like to lose your home to the government — the very government that protects you and encourages you to own property. But to lose your land so a mall can go up for “the public good,” well that must be unbearable.

What say you?

84 comments so far (Jump to latest)

Seth 23 Jun 05

This ruling is extremely scary. What’s got me even more worked up is how we continue to allow flag burning, but someone sneezes on a quaran at Gitmo and everyone gets up in arms.

What’s wrong with this picture?

Seth 23 Jun 05

Sorry for the multiple comments, but forgot to add - they don’t even have to purchase your house for fair market value.

The day someone tries to come take my house is the day you’ll see me on the news - branch davidian style…send the ATF cause I’m not coming out…

Matt 23 Jun 05

“This ruling is extremely scary. What�s got me even more worked up is how we continue to allow flag burning”

This ruling surprises me and angers me as well, since I put a high price on personal freedom. Freedom is what this country was built on.

Part of that is letting people be free to make bad decisions and live their own life, even if you find it unsettling. Burning a flag is a freedom I’ll never need, but I would hate to see the land of the free be a place that banned it. I should be free to enjoy my own property and not have it taken over, and people wanting to protest the government (and look like jackasses in my opinion) should be free to do whatever silly thing they want to do, including burn the flag.

Andrew 23 Jun 05

“and siding with the conservatives on this one…”

Well, I’m not sure how even liberals are pleased with this one. I don’t get how the US crows about being the land of the free and this model for everyone else, when in fact we are don’t have as many freedoms as even our neighbor Canada.

A different Matt 23 Jun 05

Man if the government tried pulling that on me it’d be world war 3. Seriously whatever they built on my home site would be subject to eternal seige from every angle, physical (bombs), legal and moral.

But then I’d be a “terrorist” wouldn’t I? Actually the way things are going I think the terrorists actually have the high moral ground here.

Toxic 23 Jun 05

That is what happens when you vote for an illiberal bunch of right-wingers who are sustained by big business.

Mark 23 Jun 05

I too was troubled a bit when I saw this on the news today. Lving in Houston, where literally every freeway is under construction, I’m seeing it first hand, as a whole section of homes, strip centers and even a mall have been demolished to allow for a 10 lane freeway.

However, as a homeowner how “free” and “owner” to you really think you are?

For me, I have a mortage to take the next 25 years to pay. Miss a few of those payment, God forbid, and “my home” is in jeapordy. Likewise, I live in a community with a strong home owners association. Piss those folks off by not abiding by the playbook or missing a yearly dues payments, and they too can throw some deep doo-doo regarding your way, as well.

Have to pay sales tax on your freelance work? Miss a couple of those and see what the state can dish out for you in terms of punishment on your freedom and livlihood.

My point? Sure the feds coming in to take “your stuff” is a bit scary, but really I don’t think we’re as secure in what own as we might think we are.

Will 23 Jun 05

What�s got me even more worked up is how we continue to allow flag burning, but someone sneezes on a quaran at Gitmo and everyone gets up in arms.

Wow. I don’t even know where to begin with this…

In terms of the topic at hand though, eminent domain, this ruling is really scary.

Dennis 23 Jun 05

Hey Toxic:

As they would say on slashdot, RTFA.

He was joined in his opinion by other members of the court’s liberal wing � David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, as well as Reagan appointee Justice Anthony Kennedy, in noting that states are free to pass additional protections if they see fit.

The four-member liberal bloc typically has favored greater deference to cities, which historically have used the takings power for urban renewal projects.

JD 23 Jun 05

You’d better be especially fearful if you own a home in Texas or Alaska that may have oil underneath it.

Tommy 23 Jun 05

This is a stunning decision! I can’t believe it …

If the state/city/county needs to build a new highway, damn, or a power plant that is for the good of the whole community I can see the logic w/ eminent domain. It would suck for those that lose their property, but I can at least see the logic. But that isn’t the case w/ this ruling.

Not only should the government have to pay the owners “fair” market value, but they should have to pay a lot more. If the state has taken my property taxes for 10, 15, even 20+ years and they want my land I want my property taxes back w/ interest. Or I want a percentage of the future revenue that will be generated from my land.

Caleb 23 Jun 05

“as many freedoms as even our neighbor Canada”

Yeesh — you make it sound like we’re some kind of lesser neighbour.

I can’t remember the last time I saw a Canadian flag burning (okay, maybe outside of Quebec, but that’s a different issue)… I think that speaks to how we’re doing up here.

As for eminent domain… What about states being able to pull a lil eminent domain on intellectual property? The specific example I can think of is with regards to medicine.

You folks “siding with the conservatives on [that] one?”

Sean 23 Jun 05

Interesting decision. It brings two ideas to my mind.

First, government and business are too intertwined.

Second, now you know have the Native American Indians feel.

From a philosophical perspective, the idea of anyone owning a part of the earth is ridiculous. An idea built by western societies and backed by physical force. Certain Indigenous Indian cultures had no concept of land ownership. Instead they believed that they were a part of the land and nature. A concept most westerners would have a hard time grasping.

So, if the government is going to take your land, what are you going to do about it? They have more money, more lawyers, more time, and probably most importantly, more guns, than almost anyone could combat.

Many (Micronesia, Native American Indians, Hawaiians) have tried and failed.

End cynicism.

Don Schenck 23 Jun 05

You have no idea.

First, I live in a state where you cannot own private property; you have to rent it from the Commonwealth of Pennsylvania.

Secondly … there’s an enormous controversy in our area regarding Eminent Domain. A local developer was preparing a large tract of land, overlooking the Susquehanna River, for very high-priced home. The County of York, Pennsylvania, then decided that they want the land of yet another park.

So guess who is losing his land to the county? I don’t know of anyone (sans the County Commissioners) who want this.


Benjy 23 Jun 05

I just see so much potential for abuse of this. How hard would it be for some developer to “buy” an election in some small town by throwing money at a friendly candidate and then start taking people’s homes to build his strip mall, condos, waterslide park, etc. It’s the rich taking from the poor.

While towns claim its to bring in more tax revenue, how much revenue is worth ruining that fundamental ideal that the representative leaders are there to make life safer and better for their residents. Even if there are less potholes or more firefighters, are people really better and safer if they never know whether their home is next?

JohnO 23 Jun 05

Anger. I could understand the use of eminent domain IF the land was being used by the city. But when you take from one private citizen, and then give to another private citizen (in the form of a company), that is atrocious.

Oddly enough, I find myself in a similar situation. I live in an apartment building next to a (by no means large) airport. The landlord has owned this land ‘forever’. It used to be much larger. The family has sold(or was taken, not sure) land to the airport before, they have sold land to another company, and they have sold land to a church. From what I hear recently she is under pressure of eminent domain for the remaining part of her land, which would include my apartment (and seven others).

So much for a free market. So much for ‘just compensation’. Just compensation, in my opinion, would be having the government replace the house (near same square footage, same school district, same level of community), and paying the moving costs for the family.

Dave Simon 23 Jun 05

Not being an attorney, but being quite a bit of a little L libertarian, this is scary, but it’s not surprising.

It was an interesting case, because one could argue that the more conservative justices would side with the cities, out of some sort of “state’s rights” argument. But their support for the individual’s property rights held up.

Enough analysis. Like I said, I’m not an attorney!

However, as far as the comment that it was big companies pushing for this kind of thing, it wasn’t. The government has siezed land from individuals hiding behind the Endangered Species Act for years.

Whether it’s for a mall or to save the tit mouse, the government taking your land and/or property for less than fair market value is rediculous.

Hav 23 Jun 05

It’s scary and it’s already happening in my home town. A local man did not want to sell his building (which houses his business which was started by his father 30 years ago) to the developer who wanted to put up luxury condos. The city council invoked eminent domain and the developer will pay him fair market value ($600,000-$800,000) for the property.
The luxury condos start at that price, if I remember correctly.

The council’s only real reason… they could be sued for breach of contract if the developer doesn’t get to build his condos. They felt one man’s business wasn’t worth the possible legal/financial trouble.

I’m disappointed and disturbed.

Dan H 23 Jun 05

Richfield, MN used Eminent Domain to take a used Caddy dealer’s lot and give it to Best Buy’s Corporate Office… Sure, it’s prettier… and brings in more taxes… and I’m betting the used car sales guy is about as sleezy of a sales guy as the Best Buy CEO… but, the evil for evil swap isn’t the debate here. Best Buy isn’t really for “the better good of the community”, which is how Eminent Domain is justified.

Based on what many of you are saying, this is not a unique case. Sad world, huh.

Jeff Adams 23 Jun 05

2 things wrong with this country.

  • Stock Market
  • Lobbyists

Greed succeeds in causing Enron and Worldcom because of the market’s need for ever increasing profits. Greed causes rulings like this by people beholden to commercial interests.

ceejayoz 24 Jun 05

What�s got me even more worked up is how we continue to allow flag burning, but someone sneezes on a quaran at Gitmo and everyone gets up in arms.

The best response I have to those who advocate banning the burning of the US flag is another person’s words…

“The reason I’ll never burn the flag is that I’m allowed to burn the f**king flag.”

Michael 24 Jun 05

I’m tired of people saying “It’s because of the right-wing conservatives” or “it’s because of liberals like John Kerry.” The fact is, conservatives want to take away your social freedoms and democrats want to take away your economic freedoms. Both parties are hell bent on power, and could care less about the public they are supposed to serve. Real freedom involves both economic and social freedom, and neither the democrats or republicans stand for real freedom.

pb 24 Jun 05

Dennis, how about RTF Amendment: “nor shall private property be taken for public use, without just compensation.”

So the liberal bloc is just upholding the constitution and letting the matter be handled by more local govenrment. Seems resonable to me.

I much more firghtened by the flag burning amendment. The only thing less American than burning the flag is legislating against the action.

Paul 24 Jun 05

Panick struck when I finished reading George Orwell’s 1984 way back in 1978. I was younger and much more easily influenced then, but the possibilities for a ‘Big Brother’ scenario were too striking to be coincidental.

Time passed and the panick subsided. Reason and experience overpowered fear and emotionalism. Government had gone through many changes and ideologies in these past 27 years and Government will continue to change.

Unfortunately and fortunately, the pace of change is slow. The policies of the day will have positive and negative effects on each of us, but the policies will enevitably change over time. The power will change hands, the parties will swap places and the changing needs of the day will dominate.

I believed that this fundamental cycle of change provided a much needed equillibrium, a balance of power and philosophy. A continuous and iterative introspection over the long term that made America successful as a democratic nation.

I believed that this balance was impervious to any minor fluctuation over the short term and that any negative short term affects, short of nuclear war, would be righted over the longer inflective period.

I was wrong!

Americas current political personality and the current administrations policies and ideology will have a permanent and lasting effect. I believe for a much longer period of time than the next few election cycles.

Rapid globalization, corporate profit motive and the one dimensional focus on economic growth and GDP as the key metric for success have become permanently entrenched in the American pysche.

We are selling our knowledge, skills, jobs and very way of life to foreign nations through corporate multinationals supported by the Bush administration. Tax breaks for offshoring corporations, CAFTA, the attack on Social Security and the demise of the middle class are just a few of the treasonous acts of this administration.

We are extracting the wealth of our nation and using it to fund an ideology of democratic world domination that is, rightfully, being met with anger and distrust by the world at large.

We are projecting the conservative Christian religious belief system on everything from scientific progress and fact (Creationism/Intelligent Design versus Darwinism and restrictions of fundamental stem cell research for example) to fundamental human rights such what a woman can do with her own body, what is the legal definition of marriage and how a person chooses to end their life.

We are now, for all intents and purposes, under marshal law. The government can now place you under arrest, seize your property and assets, and, potentialy, torture you in the name of terrorist defense.

And now this injustice. The government can and will take your property from you if it’s for the ‘common good’, this definition being whatever the governmental body in question deems it to be.

What happened to us? Are we no longer ‘politically active’ enough to percieve and demostrate against these incredulous and obvious internal attacks against our own country? Or do these issues just fall far below the radar compared to “American Idol” or “Fear Factor”.

George may have been right after all. “1984” and “Animal Farm” could just be the future.

bearskinrug 24 Jun 05

I’m not too worried. If the government were to take my home, I’d just live in the bushes outside the municipal building for a few weeks. There’s no WAY they’d ignore a homeless man!


Griff 24 Jun 05

I find it interesting how parts of the media have spun it as a win for “big business.” The fact is that a business cannot seize your property but a government can. Sadly, protection of personal property rights is one of the few useful services a government can provide. There must be some personal incentive to those in the local government to take this property. Either they were bribed or they see it as a vehicle to increase their personal income and power. Absent this incentive and the intervention of the government, a “big business” would be forced to either pay the price requested by the property owner or find and alternative. Obviously it must be easier and cheaper to buy the government than it is to buy property at a fair price.

A truly free market and an incorruptible government are what we really need.

JohnO 24 Jun 05


“We are selling our knowledge, skills, jobs and very way of life to foreign nations through corporate multinationals supported by the Bush administration. Tax breaks for offshoring corporations”…

Not that I defend Bush, but realize that the above things were being done in the Clinton Administration as well…

Lau Taarnskov 24 Jun 05

I’m not an American, but have libertarian ideals and admire the ideas of freedom from coercion. In many areas USA have had high degrees of freedom compared to other countries. But power corrupts, and the state has grown larger and the power of politicians over individuals has increased dramaticly. Each day, the “land of the free” becomes less free. The same thing happens in other states around the world. Government power increasing on behalf of the individual citizens.

The consitition was made to define the limits of the government. The government was supposed to protect the individual rights, including property rights. But it has become the biggest violator of those rights.

It is very hard to limit government, and if the citizens are not aware of their individual rights being violated and are not fighting for their freedom, their freedom will be taken away.

Darrel 24 Jun 05

I don’t mind the intent of ED as being a way for government to manage land to the benefit of the people overall.

However, this ruling seems to benefit private developers moreso than anyone. And that is scary.

Damn republican activist judges favoring big business. ;o)

Darrel 24 Jun 05

Second, now you know have the Native American Indians feel.

Ouch. That stings.

As it should. ;o)

Jaime 24 Jun 05

This is sooo not good timing, as Indianapolis area home/business owners are facing the potential force of eminent domain so that we can have a nice new football stadium. I really have to think there has to be a fair and judicious way to make the decision of what’s really in the best interest of the “public”. Because up until now, all the city has been talking about is how much money the new stadium will bring to, you guessed it, “the city”. Now, I realize that some members of the public will benefit from this influx of new money for the City of Indianapolis, but the vast majority will only see more expense, as we have to pay higher parking, ticket fees, and taxes to pay for this great new stadium. If they take someone’s property for this without fairly compensating them, I will be *most* pissed, as should all Indianapolis residents.

Mike 24 Jun 05

I have a master’s degree in city planning and I kind of look at the decision as a technicality. Frequently, municipalities are not pressed too hard in court on justifying the “public good” aspect of an eminent domain seizure (basically, once a seizure starts, the municipality and private interest nearly always win out). So, the decision is more of a confirmation of existing practice.

Several of the posters are saying that they don’t even have to pay fair market value, which is incorrect. Fair market value when involving a home is pretty easy to determine (using comp sales), and actually owners usually get more than FMV. It is when you start talking about businesses, is when valuation gets tougher.

I’m not crazy about the decision, but I don’t look at it as a run-to-the-hills earthshaking decision.

Clay 24 Jun 05

I was involved briefly in a fight against an eminent domain action here in Brooklyn, where a developer is trying to snag several blocks of a downtown neighborhood for a stadium, apartment buildings, and office space.
The argument for “public good” goes like this:
1. it creates jobs
2. it increases tax revenue

The problems with these arguments are simple to demonstrate.

1. tear down my house, build a large block of useless concrete. You have created jobs in doing so. Job creation is not tied to utilty, just activity.
2. tear down my house and build a convenience store. in this case by switching a residential unit with a business unit you have increased taxes.

So any switch business in place of a residential unit can be argued as “public good” regardless of what the business is: the demolition and construction creates jobs, the business itself generates more tax revenue.

The true benefit, of course, is to the developers and new landowners.

DXO 24 Jun 05

The sky is not falling. The court made a sound, reasoned decision. Some bottom lines here: Society should not be a slave to history. Nothing is permanent. Things change. Pieces of land that had homes build on them 75 years ago may be better used for other types of architectural structures today. Municipalities had the right to decide that homes belonged there 75 years ago, and they have the right to decide differently today.

My advice is to take an active part in eminent domain decision-making in your community. The more people who take part in the process, the greater chance that the power of eminent domain will be used for the common good, and not for the caprice of business. The process is there, get a mitt and get in the game. If you have the misfortune (and I realize it�s pretty harsh) to have your home targeted by the government for demolition after all the proper hearings, spend your energy on making sure you get a fair price for what�s yours.

Josh Williams 24 Jun 05

When I read this yesterday, I was completely shocked. Still not believing they actually ruled this way.

Imagine a home that’s been in a family for say, 75 years, then your local governments decides they want to improve the city by building a new urban shopping area / town center / city hall… There’s nothing you can do about it.

The ruling allows for “just compensation” for the land owner, but this is total BS. Who gets to decide what “just compensation” is? Is anything about this “just”?

Equally surprising to me were the judges who voted for and the judges who voted against. That was not what I expected either.

Now, land owners will have to rely on their own State’s laws for protection from eminent-domain. DXO (above) is right about getting involved in local government — but to have this passed down from the Supreme Court is unbelievable.

This could become a real swinging point when you have to decide between a move to one State or another.

This is a sad thing.

Dennis 24 Jun 05


My comment was limited to toxic’s assertion that “[t]hat is what happens when you vote for an illiberal bunch of right-wingers who are sustained by big business.” That simply wan’t the case.

I don’t think anyone’s debating the right of government to exercise eminent domain or it’s responsibility to compensate property owners. The question is: what constitutes “public use?” A public transportation system? A public park? A highway? A shopping mall? A condo?

So it appears that in this case, the conservatives favored a more conservative interpretation and defended personal property rights, while the liberals have weakened personal property rights and passed the buck to the local governments, who are likely more susceptable to local influence, kick-backs and back-room deals, and, hopefully, local public outrage.

At least we are in complete agreement WRT flag burning.

Dan Boland 24 Jun 05

Equally surprising to me were the judges who voted for and the judges who voted against. That was not what I expected either.

I’m not surprised at all by that, actually.

But one angle no one has addressed (here, anyway) is that the Bush administration is going to use this decision and others to push a right-wing agenda into the Supreme Court.

The first prong was the Terri Schiavo case, even though in my opinion, the judges interpreted the laws in exactly the right way (and were, in a way, vindicated when her autopsy revealed a brain full of mush).

This decision is the second prong. “Look, these liberal activist judges don’t respect your property rights.” I can see it now.

And I think the third prong will be flag burning. More specifically, I think this amendment will pass in Congress, but the Supreme Court will strike it down. Personally, I didn’t realize we had a problem with flag burning to the point that we need to amend our Constitution to deal with it, but what do I know?

Anyway, that’s what my crystal ball is telling me…

jim winstead 24 Jun 05

the supreme court can’t strike down a constitutional amendment, since it is by definition constitutional. so if the flag-burning amendment passes the senate and is ratified by enough states, it is the law of the land.

Lau Taarnskov 24 Jun 05

The greater good. That is the excuse for horrible systems such as communism. Individual freedom vs. the collective.

Who cares about the greater good, if your freedom has been violated. How can someone have the arrogance to take away someones property and say that it is the best thing for the victims?

ED is a wrong. There is no good excuse for it. If someone want some property, they should offer a good price. It’s that simple. If they won’t offer a high enough price, their reason for using the property for a different purpose properly isn’t that important. After all, the current owners must value their property higher than the offer.

Dan Boland 24 Jun 05

Jim Winstead

Dan Boland 24 Jun 05

Sorry, must have screwed up my tags.

To paraphrase what I had already written, the ratification of the amendment by the states doesn’t instantaneously happen once it’s approved by Congress. During that time, the ACLU or some other group will probably take a stab at the Supreme Court to try to get it struck down.

Personally, I think the Bush administration is counting on it being struck down, so they can use it to their advantage to push a more conservative judiciary. Why else would such a total non-issue be on the verge of becoming a part of the document that defines us as a nation?!

John Spitzer 24 Jun 05

I’m a conservative and a capitalist and I find this decision very frightening.

Government’s role is to protect citizens and their rights. They are also to ensure the greatest amount of freedom possible in life and commerce. In business they do so by punishing fraud, theft, coercion, breach of contract and other wrongs that either dilute freedom or abridge someones else’s rights.

Now there is the opportunity for governments to not just stop protecting citizens’ property rights - but actively take their property on new grounds, motivated by money (tax revenues).

Cash hungry governements and businesses can work together now in an unholy union to take citizens homes. The motivator behind government is now easily corrupted from a true “greater communal good” to “how to raise more tax revenue”.

Government is behaving just like a business, seeking to build its bottom line, but unlike a private business it can take your property against your will “legally”, something that would be called “theft” or “coercion” in the private sector.

Even if property owners are compensated at fair market value and even if the end result is a net economic positive for the community - that does not justify the use of force to take your property in this situation IMO.

You should not “rob” one private citizen to turn around and give to another so they may generate more money from it and you get your cut as part of the deal.

Griff 24 Jun 05

I have to disagree with the comment that these people get “fair market value” for their home. These people have not offered their homes for sale! There is no price, no fair market value!

I own the wooded lot next to my home. I enjoy the fact that it is undeveloped, provides a buffer from neighbors, and is full of all kinds of animals like hawks, owls, squirrels and snakes. The lot itself would certainly generate more revenue for the state and local government if it were developed, with another oversized home or business.

One of my favorite charities is the Nature Conservancy. Why? Because they take donations and buy property to protect nature areas and wildlife. What better way to protect natural areas…not depending on the government, not making lawyers rich, not seizing property from land owners. I would like to hear the outrage if one of their properties was being taken to increase tax revenue! Property rights are property rights. You can’t pick and chose who gets rights and it is almost impossible to determine what is good for the public. What public? All of them or just a segment? Is the benefit equally or fairly distribted? I doubt it. This ruling is sickening.

Darrel 24 Jun 05

An example where this was taken to extremes is here in Minnesota. We kicked out a 20-ish block neighborhood to allow Best Buy corporation to build their new (gigantic, and ugly) campus:


I’m struggling to figure out who that really benefitted.

sloan 24 Jun 05

It is a tricky thing because the government can do all sorts of things that violate individual rights and it is technically legal. The problem with ED is that, even if given fair market value, there are costs involved to the individual. For ED to be fair, they should have to pay moving and all other relocation costs. If you just bought your first home and ED takes it away, you’ve lost those first time home buyer benefits, so you are taking a big loss. In all reality, this is the tyranny of the majority against the minority, which is something that the founding fathers wanted to prevent. ED should be adjusted so that there is a greater burden of proof and higher penalty for enacting it, that is, give proper compensation to the minority.

Paul 24 Jun 05

George Will weighs in on this in an editorial today, describing this move by the Supremes as ‘Liberalism.’ This is purely a pro-business kind of decision you would hardly associate with liberals.


Dan Boland 24 Jun 05

This is purely a pro-business kind of decision you would hardly associate with liberals.

I think you’re missing the broader picture here… it’s not pro-business, it’s pro-government, and it stands for everything the Founding Fathers sought to avoid. Apparently, “public use” implies “anything.”

Geoffrey 24 Jun 05

Paul: The reason the decision is associated with “liberals” is that, for the most part, liberals tend to side with the concept of “the greater good”. In this case the city has determined that the greater good of the community is more important than that of the individual. That tends to be a “liberal” viewpoint. As a centrist/libretarian type I find this decision quite scary.

“When the common good of a society is regarded as something apart from and superior to the individual good of its members, it means that the good of some men takes precedence over the good of others, with those others consigned to the status of sacrificial animals.”
—Ayn Rand

Darrel 24 Jun 05

I think you�re missing the broader picture here� it�s not pro-business, it�s pro-government

These days, big-business = government

Anyways, the examples given aren’t pro-government. They’re pro business…namely pro-real-estate developers.

Geoffrey points out why it’s easy to quickly label it as a liberal thing. Which is ideal for big-business conservatives. If they shout ‘liberal’ first, it really doesn’t matter if it’s true or not.

michael 24 Jun 05

Terribly, terribly frustrating.

This is the equivilent of myself going to the court to declare that your personal savings should belong to me because I am a far superior investor and could do more for the economy. It’s hypothetical and a ‘cross my heart, hope to die’ mentality.

The cornerstone of capitalism is the respect and recognition of private property rights. Be it your life, your trinkets, or your land.

With this being eroded, what is the point of doing honest business? If I can’t truly own my property, why should I care about stealing or cheating my neighbor?

This is not capitalism. It is a mixture of socialism, facism, and pure mob rule. These businessman and government officials are the new gansters of the town.

The old republic has been eroded. It’s sad that the same people robbing the property of others will be wrapping themselves in the flag come July 4.

Darrel 24 Jun 05

This is not capitalism. It is a mixture of socialism, facism, and pure mob rule.

Interesting how folks are labeling this as an afront to a range of political POVs. From being pro-business-capitalism-run-amok to liberal-socialism. ;o)

Jim 25 Jun 05

I refuse to consider this a Republican-Democrat party issue. Perhaps it has deep philosophical roots or assumptions. But it is outright wrong. We are seeing the creeping “entrepreneurialism of government”. As group (city council, country commisioners etc.) they see a “profit” to be made. Profit is partly increased taxes without the need to raise taxes outright. They can screw a small minority of property owners and other owners are concerned but just glad its not them and maybe they’ll experience less taxation. Developers are only too happy to help these “entrepreneurs”.
So the way in which our system will eventually collapse is by politicians, who can’t leave anything alone, systematically slice off small portions of private equity, in amount below the collective ouch point, until private equity becomes so small that no one will object to seizing the remainder (I got screwed, so should you.)
I don’t think it is partisan at all. More like a law of nature of power.
These creeps on the Supreme Court are so out of touch—they have staff to do their work, permanent, cushy jobs, infatuated with their own power—and they friggin lawyers.
As these stories so often conclude, we will all be boiled frogs unless we exercise our votes in larger numbers with better info.
This is a power stratification issue, not a partisan one. And taking the partisan bait serves to retain the power strata.

ek 25 Jun 05

These creeps on the Supreme Court are so out of touch…

To be honest, I don’t think they’re out of touch at all.

We can blame the politicians all we want, but the root of this problem is us, meaning the American public at large.

Why is the "entrepreneurialism of government," as you called it, on the rise?

Certainly, it is at least in part due to the ideology of our political leaders, but it wouldn’t be possible if a goodly number of Americans weren’t demanding static and/or lower taxes while, at the same time, demanding that the level of services remain the same and/or increase. So, where can the local/state/national governments go to fill the gap? The answer they’ve come to is big business, which is more than happy to oblige … for a price.

It’s basically the same situation we’re seeing on the retail front. People want their goods as cheaply as possible, so they go to Wal-Mart, which is able to provide said goods at such a low price because of efficiencies of scale and because the company purchases nearly all of its goods from third world manufacturers. In the meantime, local retailers go out of business, local jobs are lost and, on a larger scale, manufacturing jobs in general are lost because American manufacturers simply cannot compete with countries like China and India on price.

Sure, you can call Wal-Mart evil, but when it comes right down to it, would the company exist if millions of people weren’t voting with their wallets by walking out Wal-Marts with overflowing carts on the daily?

Which brings me back to the beginning … I don’t think those “creeps” on the Supreme Court are out of touch at all. They seem to know exactly what a large percentage of Americans want — it’s just that many of us aren’t willing to admit to it or rather, aren’t willing to recognize the mechanisms necessary for us to be given what we’re asking for, which, put in the simplest terms, is more for less.

As long as we keep blaming “them,” this trend shifting more and more power into the hands of big businesses will continue.

Ken 25 Jun 05

I wasn’t happy with the ruling either, but I think it’s important to keep the idea of eminent domain in perspective. Calls to completely eliminate government’s (which is ultimately, our own) ability to act in the public good are short-sighted, at best.

Consider a parallel takings issue that’s been winding its way through the courts over the past several decades: regulatory takings. The idea is that ANY government act (including health and safety laws) that might reduce property values must be compensated.

Imagine having to pay a drug company to take dangerous drugs off the market. While the market may eventually respond by reducing demand for the company’s product, that wouldn’t help those harmed in the meantime. Especially if coupled with limits on compensatory damages.

Jim 25 Jun 05

good points all. Let me suggest there is a place for emint domain. In the case of drug companies with dangerous drugs, the drug is a hazard. that is an appropriate place for government to intervene. A falling down building with rats and drug dealers as well would qualify. But seizing otherwise harmless property just because a few politicians think they can do better is different in kind. A possible guideline is government can remove harm by ED but not seek to improve at the cost of individual property rights. If the improvement is such a good idea, let a real entrepreneur give it a whirl and bet his own money, not ours.
My point: it should be difficult for ED to take place, not easier and not impossible.

Darrel 25 Jun 05

let a real entrepreneur give it a whirl

Mark 26 Jun 05

Eminent domain isn’t allowed by the 5th Amendment. It is an old English Common Law that was understood. The Constitution is a limiting document, not a granting one. The problem is we have judges who see it as a granting and ever changing when it needs to be viewed as a limiting document that controls the boundries of government.

Since the Supreme Court ruled that the city wasn’t overstepping the 5th Amendment, they have given states/cities MORE control over their own ED usage. With the new termology that they coined “Public Purpose” rather that “Public Use”, we can expect to see many cases pop up around the country. The Supreme Court has basically told states to handle it at their level with this new information.

Contact your local officals and let it be known that you do not like this and you want a change in your state’s constitution to protect your land.

Mark 26 Jun 05

Also-….it is time that those in this country that tout a “Im not involved with politics” attitude to wake up and realize that your freemdoms are being deminished.

At least this wasn’t politized and taken out against the president like SO many other things are un-rightly so.

Darrel 26 Jun 05

I screwed up my last comment, but DKos sort of said what I was trying to get at.

The issue is much more complex that any of us are making it, of course. In the end, ED should be used when just. I don’t think enabling a real estate developer to make a crapload of money is a just reason…which is the reason that seems to be used all-to-often these days.

jankowski 27 Jun 05

One thing to note is that the “fair compensation” argument being used by those who agree w/ the decision is that it requires that you reject the concept of consent to the compensation to even entertain the idea.

You simply can NOT be “fairly” compensated if you don’t agree to whatever transaction you’re being compensated for in the first place.

The government and their developer friends could pay me one billion dollars (and after all, they’re paying me with my money and your money!) - but if I didn’t agree to giving them my property in the first place I still haven’t been fairly compensated, I’ve been robbed.

pb 27 Jun 05

Jankowski, that’s a pretty lame argument, the type you might hear on an elementary school playground. In the adult world, fair compensation is understood.

Nevertheless, having thought about this seriously for the first time in awhile, I’m in the personal property camp. I cannot think of any good reasons for the government to need to take land. If the supposed common good is truly good and the government is offering fair compensation, it should be able to convince the owner to sell. Otherwise, let’s let people keep their stuff.

Darrel 27 Jun 05

I cannot think of any good reasons for the government to need to take land.

People are stubborn.

Maybe the city needs to relocate some polluted land, adding a road, and making it a park. Maybe they can convince 99 people to move, but not that one stubborn family.

For instance, in our downtown, we’ve had an empty lot for decades. The city has been pleading with person to sell, but he was just a greedy person and was holding out. So, the city finally threatened ED and then a deal was finally made. Was that right? I don’t know, but I can see that without ED, ‘fairly compensated’ would have cost taxpayers an ‘unfair’ amount…as ‘fairly compensated’ if just left to jankowski’s reasoning is a purely arbitrary amount.

Or slumlords. Granted, that’s a slightly different case that can be justified with more careful and strict housing codes.

A lot of (justified) ED is fixing past mistakes of poor planning/regulation. Granted, a lot of it seems to be like this case…we just want a developer to build some fancy new buildings.

I suppose I find runaway ED policy as bad as run-away development. Both can be good or bad for the city/community.

Christopher Fahey 27 Jun 05

Without giving the government some power of eminent domain, you can kiss America goodbye.

Without eminent domain, you can say goodbye to:

- major roads and highways
- bridges and tunnels
- freight railroads
- mass transit
- airports
- seaports
- dams, seawalls, levees
- communications backbone (i.e., Internet)
- electrical power lines
- fuel and water pipelines
- urban parks
- national parks & wildlife preserves
- historic/archaological preservation sites
- military installations

Quite simply, without ED, America would perish. Heck, let’s face it, without ED America wouldn’t exist at all. It’s a fantasy to think otherwise. Forgive me for being blunt, but IMO it’s just plain dumb to flatly oppose eminent domain. That is, unless you’re either (a) an anarchist, or (b) someone who wants America to be conquered in the next 20 years (both of which are also dumb, I guess.

Am I saying that I absolutely trust government to use ED prudently? No way. Yes, eminent domain can be abused by an irresponsible government (in which case, our recourse is to vote ‘em out) and it can be abused by corrupt government (in which case we can prosecute them for graft, bribery, etc). But the risk of eminent domain abuse does not justify eliminating it, unless what you really really want is to live in a 12th-century feudal society where the sacredness of a landowner’s property can only be violated though physical violence, and where the democratic “nation state”, with the requisite responsibility for managing projects for the national good (as determined by our elected representatives), does not exist.

Seriously, how can we even have a government at all without ED? It’s impossible, really. How could such a government “provide for the common defense” or “promote the general welfare” without being able to place a bridge across the narrow part of the channel, without being able to put the Naval base in the most secure part of the harbor, without being able to connect a rapidly-growing populated area to a distant water supply?

Some will say “the government should just negotiate for the land on the open market”, to which I ask what if the seller doesn’t agree with the plan to build a bridge, or doesn’t agree that San Diego needs a Navy base? What if they insist on a price our country cannot pay?

— Should the individual American landowner thus have the right to stop the building of an urgently-needed bridge, to enable explosive economic growth?

— Should a landowner be able to prevent construction of an aqueduct to replace a crumbling old one, to save a city from likely disaster?

— Should an American landowner whose property is found to be sitting on, say, a 17th century African slave burial ground or on Lief Erickson’s campsite have the right to build a McDonald’s on the site, or should we allow our government to supercede that landowner’s property rights in the name of protecting our national heritage?

— Should someone who lived in the flood area for the Hoover Dam have had the right to hold back the prosperity (indeed, the very existence) of millions and millions of people in the American Southwest? Or would we rather have the entire region of Southern California, Nevada, Arizona, etc, continue to be the dry uninhabitable wasteland it would be without eminent domain?

Sometimes I feel like many Americans, particularly those of us under 40, really imagine themselves to be lords and ladies in the pre-Magna Carta Middle Ages, with no patience for or understanding of the modern nation-state, civil society, democracy, or even modernity itself; as if America was a every-man-for-himself multiplayer role-playing game like Everquest.

Mark 27 Jun 05

“without ED America wouldn�t exist at all”

America would not exist if not for the eminant domain of King George, Queen Mary, the Pope and many others.

jankowski 27 Jun 05

pb, looking at “fair compensation” that way puts the cart before the horse. You can’t even discuss compensation until you have consent surrounding a transaction.

I bet if you offered JF one million dollars per month to host your basecamp site we’d probably all agree that was “fair” in the sense that it was at or above the usual market level for that transaction. But we’d probably also agree that he wouldn’t have to do it on those terms unless he wanted to.

The supreme court just gave local government’s the option of holding a gun to his head and making him do it.

Darrel, the amount, if left to my reasoning, is not arbitrary at all. It’s the price the buyer will pay and the seller will accept. I have yet to find a better method for establishing the value of something. How can the government possibly know better than two parties themselves what something is worth to them?

Christopher Fahey 27 Jun 05

“America would not exist if not for the eminant domain of King George, Queen Mary, the Pope and many others.”

I think the claims by various European monarchs and Popes can’t be classified as “eminent domain”. Firstly, because the people whose land was seized (Native Americans) were usually not compensated. Plus, the governments in question didn’t even pretend to represent the people whose land was seized. There’s a difference between the exercise of eminent domain between a government and it’s own people (particularly when, as is generally the case in the USA, the government has been freely elected) and the seizure of the lands of a foreign people. The latter is called “invasion”, I think.

“I bet if you offered JF one million dollars per month to host your basecamp site … “

I don’t think it’s fair to compare the seizure of intellectual or virtual property, which is infinite, to the seizure of physical land within our national borders, which is finite. Eminent domain only applies to land, geographic land, the finite physical surface of the country. Eminent Domain cannot be used to seize your car, your stocks, your web site, or your dog. Eminent domain is about the physical limitations of land, about how certain constructive endeavors sometimes require land to be allocated in ways that dont fit in neatly with the way the land has been apportioned according to the free market among private landowners. Any discussion which compares ED to anything that doesn’t involve land is probably pretty misguided.


Geoffrey Smith 27 Jun 05

Christopher: I think you make some pretty good arguments for eminent domain, but there is a huge difference between a bridge and a strip mall. Just because the strip mall will generate more tax dollars than someone’s home and therefore add fiscal benefit to the community doesn’t seem to fall inside the constitution’s limitation on public use. Public use and public profit are two different things.
Roads, parks, blight, hazardous waste, hospitals, etc. might be legitimate reasons to bring eminent domain into the conversation. But retail and hotel property development? How about casinos? Golf courses? What if a developer wanted to put a golf course on your nice, quiet 3 acre backyard and is willing to pay more in taxes doing so. Can the city force you out?

Darrel 28 Jun 05

I have yet to find a better method for establishing the value of something. How can the government possibly know better than two parties themselves what something is worth to them?

There’s a huge difference between ‘what I want for it’ and ‘going market price’

but there is a huge difference between a bridge and a strip mall

I think that is the key point. Or at least should be.

jankowski 28 Jun 05

CF, I keep my car, stocks, web site and dog in my house. I thought this was safe because I owned the property, but now I’m not sure.

Darrel, sure there’s a difference there, but the “going market price” number is established by individuals freely entering into agreements and looking at their aggregate behavior to determine that number. The number doesn’t actually mean anything other than what usually happens or what is widely seen as being an appropriate price.

If the price of my property or my work can be set at the whim of a bureacrat, then what did the concept of it being “mine” even imply in the first place?

A 75 year old woman could rationally be unwilling to sell the house that her family has lived in for her entire life. How does paying her the price that her neighbor got for their house all of a sudden make kicking her out an ok thing to do? The fairness and legitimacy of the transaction stems from it being a voluntary transaction, not that the price is in the ballkpark of other similar transactions.

Darrel 28 Jun 05

If the price of my property or my work can be set at the whim of a bureacrat, then what did the concept of it being �mine� even imply in the first place?

It’s always been that way. That’s how we figure out property taxes.

And it’s not a whim, but rather analyzing and looking at average property values in a region.

How does paying her the price that her neighbor got for their house all of a sudden make kicking her out an ok thing to do?

‘OK’ is subjective. ;o)

jankowski 28 Jun 05

The “what this property is worth” price used for taxes and other actuarial purposes is for those purposes only. Just because someone has a semi-reliable way to tell you what you could probably expect to sell your house for doesn’t give them the right to kick you out, does it?

Attempting to “fairly compensate” someone you’ve just stolen from doesn’t undo the theft. It’s just a bunch of hand-waving that makes the assailant feel better about the theft.

Darrel 28 Jun 05

sell your house for doesn�t give them the right to kick you out, does it?

You’re arguing against ED wholesale. I’m not.

Christopher Fahey 28 Jun 05

Geoffrey writes: there is a huge difference between a bridge and a strip mall

I’m sure you already knew this, but I was not defending all uses of ED, nor was I defending this particular Supreme Court case. Rather I was defending the principle of ED in general. The idea of tearing down someone’s private property solely for the financial benefit of another person is abuse of eminent domain. The elected officials who commit such acts should be at least voted out of office, if not investigated and prosecuted for criminal misconduct, if that is the case. Sadly, neither of these two solutions seem very likely as long as the American people are as ignorant of eminent domain as we seem to be.


Mark 29 Jun 05

One cannot be compensated “justly” in this situation. Here is the senario. I hold 2 acres of land. A hotel decides I have prime land and there lawyers come and offer a bid for my land. I tell no way, I like my land. They then turn to the city commissioner and tell him that he wants to build his hotel on this really great land, but the stubburn owner won’t sell. He also tells him that his hotel will bring in exponentially more tax revenues then my land will ever bring in. The city commissh agrees and they use Eminent Domain. With the ruling in the SCOTUS this week, they have nothing to worry about as long as their own state’s constitution doesn’t interfere.

Okay, here is where “just compensation” breaks down when ED is used in the case such as the New London one. Say market value of your land is $5,000. The developer offered you $8,000 when you first showed up and you didn’t think that to be a good deal because you find your land to be worth more to you that that. (Free market society basics) The developer has used the government to come in and take your land without recourse. Now your land is only worth market value, no longer what you hold value to it. No longer does the free market system work. Those that want something that others are willing to sell will do so at an optimum rate, not the base rate.

Sorry if scattered, but its all there and true. No more “justly compensated”. No more free market, because the government is now involved and you are forced to sell anyway. Not on your terms, but the states.

Amy Hoy 29 Jun 05

To my mind, the bigger issue is not just that the government might decide to seize all the houses in your neighborhood for a shopping mall, but that these actions erode capitalism itself. Capitalism itself, and all that entails, is what drove this country to be at the top of the world game in so many areas for so long. We won because we were so used to competing — you had to compete, and nobody could compete with the US, because we had competition built in from the start.

Business is becoming spoiled: If you have a lot of employees and your business is extremely unsound financially, the government will bail you out. If you’re a monopoly, but are one of the most prominent corporations, they’ll look the other way. If you’re a giant company about to be bitten by the very wise old copyright laws, well, goshdern it, the whole government will conspire to fix that too. And now, if you can’t purchase property you want, they’ll get it for you, hook or by crook. Only there need be no “crook” involved, because now it’s all legal.

This kind of government behavior removes capitalism, and the need to compete, from the equation. So, to build on what Mark and others said, instead of the big business having to either persuade property owners to sell, or coming up with an innovative way to work around their situation if the property owners cannot be persuaded, they have the way paved for them with government dollars. The more the government props up big business and serves as croney, henchman, and coddling co-dependent mommy to businesses at large, the US will continue to lose its competitive edge. We’re losing to other countries big time in the areas where we used to excel the most — technology, innovation, education. Sure, we have a handful of highly prominent, cutting-edge institutions (Apple, Google, etc.) in those areas, but the very prominance of these very few organizations seems like a signal that there’s not enough going on.

Mark 30 Jun 05

I highly agree with Amy.

Like I said before, it is time for those that claim they are politically ignorant and proud need to realize that somethings are worth caring and fighting for; otherwise you will see this great Republic come crashing down.