Eminent Domain- Always an Abuse

Zohar Laor reports in the Star-Ledger on a court victory for the victims of eminent domain in Long Branch, New Jersey. He reflects on the Kelo decision, calling it “a decision taken straight out of American mythology's Gotham City, [that] shocked conservatives, liberals & everyone in between by ruling that local governments may force property owners to sell out and make way for private economic development.”

In fact, though, that decision in Connecticut should not have shocked anyone. From as far back as the 19th century, eminent domain has been a tool of private parties to coercively advance their own economic interests. According to a Hoover Institution report:

Here again, we see nineteenth-century takings in which the government condemns land and immediately transfers it to a private party (i.e., a railroad company)…

The Supreme Court made clear the extremely close nexus between the taking of land for railroads and the public purpose to be served, circling back to questions of grave necessity, public use…

The court reasoned that if government itself had the power to regulate commerce by building highways, bridges, and the like, then it would be a legal absurdity to insist that it could not — to use the modern parlance — outsource the work to a private corporation. (emphasis added)

Eminent domain “abuse” going on today is a logical consequence of historical trends, demonstrating again the incredible power of legal precedent. . Note that the court links the justification of eminent domain to the commerce clause (article 1, section 8) of the constitution, then “circling back” to that vague, undefinable term, “public use.”

I have left the following comments to Mr. Laor’s article:

The U.S. constitution is the greatest political document ever written, because it is the only one that holds the individual as the supreme value, on principle, and seeks to protect him and his inalienable rights from the power of the state. Unfortunately, the Founders allowed into the constitution certain unfortunate loopholes that violated its own principles. Eminent Domain is one of them.

When government acquires a power, such as eminent domain, to violate the rights of any of its citizens, it inevitably becomes the tool of any group able to gain access to the lever of that power. It becomes a means for some to achieve politically...i.e., by force...what it cannot achieve through voluntary, uncoerced persuasion and trade. It makes no difference what size that group is or what their purpose is. It makes no difference what compensation is paid to the victim. The end result is the same...the violation by some of the rights of others.

There is no essential difference between the taking of property for the benefit of a private developer, or for some "public" benefit such as roads, schools, or hospitals. Each represents the interests of some private person or group. Each is achieved through the negation of the rights of others. And each is immoral.

The modest pushback against the Kelo decision, while welcome, will be only a temporary reprieve from Eminent Domain's inevitable expansion to new levels of "abuse." As long as we accept as valid the fundamental premise that government can take by force the property of any law-abiding private citizen, for whatever purpose, there is no way to contain it long term. Eminent Domain must be confronted on principle as unjust and immoral, at all times and in all circumstances.

Like most Americans, I have for most of my life accepted eminent domain as a necessary evil. But the history of eminent domain, from the railroads of the 19th century to the present, has been one of steadily expanding reach and abuse. I have concluded, then, that an uncompromising stand against eminent domain on moral grounds...i.e., on the basis of individual rights...is the only viable position. There is simply no way one can fight eminent domain "abuse" by declaring it invalid...except when it meets one's own approval. There will always be some next person who views his exception as valid.

The only way to stop eminent domain abuse is to abolish eminent domain.

Mr. Laor’s heart is in the right place, as evidenced by his concluding comment:

This episode of abuse-of-power has ended on the side of justice but at the cost of time, money and anguish.
All for a battle which shouldn't even be fought in a free society.

But his allowance for “road, schools or hospitals” undercuts and negates his “gut” opposition to eminent domain. The inherent contradictions in that stance are manifest. It is OK to take private property to build a school, a road, or a hospital. But it is not OK to take private property so a developer can build condos, which will be filled with people who will use that school, that road, and that hospital…the very things that it is OK to take private property for. The “public” in public use applies only to the users of that school, road, or hospital, but not to that property owner thrown out to make room for them. Unless, of course, the displaced landowner happens to avail himself of the use of that school, road, or hospital…in which case he becomes the “public” in public use!

The power of ideas is inexorable. Bad ideas can be fought only by means of the consistent…i.e., principled…advance of better ideas. It is not enough to fight eminent domain abuse. Eminent domain is abuse.

Abolish eminent domain!

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