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Is there such a thing as private property?

Connor Roth | Sunday, March 24, 2013

An issue I’d like my fellow classmates, faculty and staff to consider is the role of eminent domain in American politics. For those who do not know, eminent domain is defined as “the power to take private property for public use by a state, municipality or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.” Eminent domain stems from the Takings Clause in the Fifth Amendment of the United States Constitution, which reads, “… nor shall private property be taken for public use, without just compensation.” While one may initially think this power may benefit society for the betterment of “public use,” I think eminent domain is an issue in itself that we Americans need to further consider. We should also discuss whether a free society can exist with a clause similar to this in the Constitution.
The Takings Clause is recognized historically as the Founding Fathers’ attempt to curb the manipulative seizing of property, but it has not always been interpreted as such. Eminent domain has been recently criticized in the Supreme Court’s decision in “Kelo vs. New London,” and has also been described as the “despotic power” by the Supreme Court in “Vanhorne’s Lessee v. Dorrance,” a 1795 case regarding constitutional law and power. Without a doubt, this power has faced consistent opposition from the beginning of this nation to the present. Since this country’s founding, eminent domain has become more and more of an issue, gaining most recognition through the 1954 Supreme Court case of “Berman v. Parker.” In its decision, the Supreme Court ruled “public use” could be interpreted much more broadly than it had been previously, opening the floodgates for abusive governments and private developers to “reason” that property should be seized for redevelopment – which in turn would provide for the “public use.” Thirty years later, the decision in “Hawaii Housing Authority v. Midkiff” stated the government could break up oligopolies and redistribute their property as an intention of lowering housing prices. Unfortunately, what actually happened afterwards is that property values doubled over the next six years since the fee simple titles were just transferred to other owners, who then sold the land for profit.
The culmination of a state using eminent domain as a police power can be found in “Kelo v. New London,” a 2005 case in which the Supreme Court ruled private property can be seized and transferred for private commercial development, citing “economic development” and “more tax revenue” as justifications for the decision. A private company intended to build its headquarters in New London, Conn., which the city argued would bring in economic stability to the region, more money for the city through taxes and commerce and would benefit the public as a whole through its business. For these reasons, the five-to-four majority of the Court ruled that since taking Susette Kelo’s home would benefit society at large economically, the taking was legitimate. The dissenting justices ruled this decision would set precedence for a “reverse Robin Hood” form of action, in which the powerful could take from the poor. Justice Sandra Day O’Connor wrote in her dissent, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Again, in this statement she is illustrating that the wealthy can lobby for their own interests against the less powerful, with Justice Clarence Thomas arguing, “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.” To make matters more embarrassing for the Supreme Court, if you Google-search, “What happened to Kelo’s property,” you can find images of an empty field where that private firm was supposed to develop. So while the Supreme Court effectively chose a winner and a loser in the “free” market, the winner ended up building somewhere else. New London is still the same town it was before the case, and Mrs. Kelo had her beloved home moved to another location.
Of course, people can always create an argument for a scenario that would seemingly make sense for eminent domain. What about building airports, roads or other things the public uses? A student in one of my classes pointed to a home in the middle of a street in Boston, Mass., arguing getting rid of eminent domain would end up with ridiculous situations like that all over the country. While I think that is actually funny, laudable and principled of the property owners, that kind of argument for eminent domain leaves me fearful for the future. It seems people today feel like they are entitled to the private property of others, as long as they can form a rationale why that land can benefit the “public interest” or will “economically develop” the local area. What bothers me most about eminent domain is there is no arguing against it. There is no choice for the property owner. Eminent domain is essentially forcing someone to sign a contract which by definition isn’t a contract in itself. If someone wants to buy your house for $500,000 and it’s worth half of that, you don’t have to sell, even if it would make sense financially. But if a man wearing a badge from the government wants your land for some “compelling purpose,” he can take it if there is a strong enough argument. The only way to fight back is in the courts, and look where that got Mrs. Kelo. If we want to form a more free society, shouldn’t people have the right to choose whether they want to sell their property, even if that land may actually be beneficial if used for the public? Even if the owner will receive “just compensation,” is the property value of a home really all it is worth? Do memories of sitting on the porch, playing football in the backyard or grilling out in the summer account for nothing? People may call this notion against eminent domain idealistic or even far-fetched, but I’d invite you all to consider the moral hazard property seizing has on society and whether or not a truly free nation would engage in this practice. But then again, maybe we just don’t want to be truly free.

Connor Roth is a sophomore
economics major and constitutional studies minor. He can be reached at
The views expressed in this column are those of the author and not necessarily those of The Observer.