What is Eminent Domain?
We hear it in the news lately where in a number of cases, the city somewhere has used the power of eminent domain to demolish people’s homes and make way for new condominiums or other structures that would produce more tax revenues.
What gives them this power?
Imagine that you have lived in your home for many years, and all of a sudden the government exercises this power….kicks you out of your home…..yes, they pay you the assessed value, but it has no regard to the memories and the years you have lived there.
Well, tucked in the Fifth Amendment to the Constitution is a phrase that says:
“nor shall private property be taken for public use, without just compensation.”
What does the word “public use” mean. That appears to be the difference.
This phrase in the Constitution lay dormant for almost a hundred years. People felt that it meant just what it said….if a government needed the property for a public use such as a park, a government building, or some other public useage…it could secure the property by eminent domain….the courts determining the value.
But in 1876 in a suit Kohl versus the United States the Supreme Court affirmed that this power was necessary to the existence of the National Government as it was to the States. For many years it was still maintained that no government could exercise eminent domain unless it was for a public usage and that proper compensation was paid for it.
Court rulings said, in effect: The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.” It also indicated that such takings were within the power of state and other local governments, and that such takings could only be reviewed by the States in which it occurred.
Thus even up until 1946 people felt secure in their homes, that they were protected under the Constitution.
However that year a case involving eminent domain at the federal level found the Court casting considerable doubt upon the courts power to review the issue of “public use.”
Prior to these decisions it was normally assumed that “public use” was synonymous with “use by the public” and if there was no duty upon the taker to permit the public as a right to enjoy the property taken, the taking was invalid.
However, the modern conception of public use carries with it the police power in the furtherance of the public interest and such issues as public safety, public health, morality, peace and quiet, law and order.
This concept has been carried now to the point where entire areas can be cleared to make way for construction that would produce more tax revenues to the government doing the taking. They can then turn it over to a private developer.
The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments, and now local governments, in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low cost housing and promotion of aesthetic values as well as economic ones.
So….now you understand why the Supreme Court positions are so important.
As the nature of the Supreme Court changes…so does its’ interpretation of just what did the original founders of this nation mean…when they drafted the Constitution.
The Roe versus Wade decision is a case in point. No place in the Constitution does it refer in any way to abortion.
Yet, a number of years ago the then Court ruled that the privacy clauses of the Fifth Amendment were just that and provided the privacy for a woman to make her own decisions on such matters as abortion.
My own opinion is that a woman should have this right, but the bigger issue is as long as our liberties depend on that Constitution it should not be liberally determined to enable it to cover whatever is the inclination of that particular court…but rather what was the initial intent of that makers of that Constitution.
I guess that makes me a strict Constitutionalist…..but so be it. My feeling is that the Court has gone too far when it gives government the power to take people’s property for one reason or another. The right to hold property is a basic right of our personal freedom.
This is Floyd Wynne and that’s THE VIEW FROM HERE,.