Eminent Domain - Dissenting Opinion

• “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valu­able to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.”
  
  - Justice O’Conner’s dissent in Kelo

Justice O’Conner has written an excellent dissent in Kelo. O’Conner’s dissent highlights just how dangerous the idea of “private eminent domain” is to the rights of every American. Essentially, the majority’s ruling says that so long as the legislature determines that the public would benefit from the taking, then the courts will not interfere.

One of the petitioners in this case was trying to save a home that she was born in (in 1918) and had been in her family for over 100 years. My family lost property to eminent domain (so a major road could be built), but this woman is about to lose her family home so that Pfizer can build a facility on the site. While losing a family home to a road project is difficult, I would imagine that all of us would be much more upset about seeing a Wal-Mart sitting where our family homes used to be.

Eminent domain, when used appropriately, is a necessary evil in our democracy. When the public good demands a new highway, the government must be able to complete the project, so long as they fairly compensate landowners. However, eminent domain should not be an excuse for multi-million dollar corporations to be able to force families out of their homes, all in the name of increasing their own bottom line.

The majority argues that the “incidental” benefits to the public should be enough to meet the requirement of “public use” contained in the Fifth Amendment. This reasoning is faulty in that there is no logical end to it. So long as the legislature is intelligent enough to come up with a “benefit” to the public when drafting the bill, the courts will be powerless to stop the taking. This is an extremely dangerous path to tread, and leaves the legislature as the final arbitrator of all takings. There is something inherently un-democratic about saying that the legislators of every state have the final say in distribution of private property, and can divvy it up as they see fit.

If a corporation wants to build on a site badly enough, it should have to pay someone what that person demands; and if that person does not want to sell at any price he should have the right to refuse to sell. I think that one of our greatest founding fathers summed it up best when he said:

“[T]hat alone is a just gov­ernment, which impartially se­cures to every man, whatever is his own.” - James Madison