Law Quarterly

Eminent Domain: A Clause that’s Regaining Relevancy

By Eleazar Weissman

Oct
27

How would you feel if one day the government came knocking on your door and told you that they were seizing your property for a new development? I’m sure you would be a bit shocked. However, this all can be a reality because of a clause in the 5th amendment. It states “nor shall private property be taken for public use, without just compensation.” This statement alludes to a preexisting notion of eminent domain, where a sovereign government may seize private property for public use. Like many other parts of the constitution, there can be a couple key words that hold very important meaning and that are open to interpretation. In regards to eminent domain, I am of course speaking of “Just compensation”. Some powerful influences have attempted and succeeded at times in using those two words to pressure the government into exercising its constitutional ability of eminent domain. For better and sometimes worse eminent domain is used and it has become a contentious issue.

Recently, in both the Democratic and Republican primaries candidates have been criticized for their affiliation with eminent domain abuse. Eminent domain abuse has been categorized by instances where eminent domain is not used for public use and without just compensation. One of the more controversial supreme court cases of our lifetime involved the use of eminent domain. The case Kelo Vs The City of New London in 2005 and the incidents involved took place in my home state of Connecticut. To summarize briefly, Kelo accused the city of New London of unlawfully using eminent domain because the property that was confiscated was never put to good use. The intention was that the land was going to be used for a revitalization project that would provide more houses/tax revenue to the community and therefore constituting public use. However, the private developer that the city entrusted to use the land no longer had the financial capability to afford the development. Because of this the property was put to no use to the public good aside from being home to wandering stray animals and urban decay. The supreme court came down in favor of The City of New London claiming that it was within their constitutional right to use eminent domain.

Many policymakers on both sides of the aisle have criticized this decision. This of course excludes Donald Trump who hailed the decision and has been a strong supporter of the use of eminent domain. In the early 90s, Trump had attempted to benefit off of the use of eminent domain, pertaining to a piece of property held by Vera Coking in Atlantic City. Essentially, Trump wanted to use her property for as a space for a Limousine parking garage for his hotel casino. She fought the claim of eminent domain and eventually won the right to her property. Eventually, Coking prevailed in court. Ironically Trump would come to no longer want the property because his hotel casino was in economic downturn. It is very possible that if the eminent domain of Coking’s house had succeeded, it would have had a similar outcome to the property of Kelo, as the property dramatically lost value after the case was settled and possibly gone unused all together. When criticized about being affiliated with improper use of eminent domain during the primary, Trump used one of his more notable tactics of diversion by accusing someone else. He accused the Bush family of abusing eminent domain. Though Jeb was not the particular perpetrator, his brother and our former president was. Before George W Bush was president, he was owner of the Texas rangers he made deals with city officials to use eminent domain (as well as citizen’s taxes) to seize land and the financial means to build his baseball stadium. Despite this, former president Bush as cautioned against the abuse of eminent domain. Now that Donald Trump has been elected president, we might have more reason to caution. Trump has remained a strong advocate for the use of eminent domain claiming “you wouldn’t have roads, you wouldn’t have hospitals, you wouldn’t have anything. You wouldn’t have schools; you wouldn’t have bridges. You need eminent domain.” It is objectively not true that we would not have bridges, schools, and roads if not for eminent domain. This interpretation of eminent domain also disregards the fact that eminent domain has been used for controversial construction that could lead to negative consequences. Perhaps, most notably in the case of the Keystone pipeline. Regardless of how you may feel on this issue, the use of eminent domain will be something that Americans should keep their eye on, particularly under this current administration.

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