Eminent Domain - Who REALLY Owns Your Home?

Do Americans Have EVERY Right To Their Own Property?

Small Home Being Demolished by Big Machine
Small Home Being Demolished by Big Machine. Photo by temmuz can arsiray/E+ Collection/Getty Images

The power of eminent domain allows a government—even a town—to take possession of any private property, as long as the intended reason is for the public good and the owner is adequately paid. See the house being torn down on this page? It could be yours. Nothing is wrong with it. The object of this bulldozer is simply in the right place at the wrong time.

Isn't the United States a country of freedom and independence? Isn't home ownership considered a right by some and an achievable goal by most people? Why, then, are some Americans still reeling over a U.S. Supreme Court ruling—decided in 2005.

"Court Expands the Power of Eminent Domain" read the headline. The case was called Kelo v. City of New London, and the US Supreme Court sided with the city of New London, Connecticut and not homeowner Susette Kelo.

Average citizen Kelo lost her New England home to an economically depressed town that was trying to convince a pharmaceutical giant, Pfizer, to locate in New London. The town had the constitutional right to pay-off Kelo and make her move. She didn't want to move, so she sued her town—and ultimately lost in a decision handed down on June 23, 2005. The legality of eminent domain is as old as the Bible. Its disruptive horror to a homeowner can be of biblical proportions.

Eminent Domain

Many of America's finest public spaces were created using the doctrine of eminent domain. The Great Smoky Mountains National Park was carved out, in part, by buying land from the settler farmers who lived in the area. Likewise, New York City's Central Park was created from property once owned by poor immigrants.

definition: Eminent domain is the power of the government to take private property belonging to its citizens. It can also be called "condemnation" or, in some states, "expropriation."—The Castle Coalition

The Takings Clause

The fifth amendment to the US Constitution is the the legal authority behind eminent domain. As part of the Bill of Rights, Amendment V sets out a series of personal legal entitlements familiar to any American who watches television dramas—the right to a trial decided by a jury of your peers, the right against double jeopardy and self-incrimination, the right of due process, and then there's this:

...nor shall private property be taken for public use, without just compensation.

Known in legal circles as "the takings clause" of the Constitution, the simple phrase "for public use" is under debate. What does it mean? Lawyer's for Susette Kelo argued that "economic development does not qualify as a public use." The Court disagreed. "Promoting economic development is a traditional and long accepted governmental function," said the Court, "and there is no principled way of distinguishing it from the other public purposes the Court has recognized." Kelo v. New London, 545 U. S. 469 (2005)

Known by this and other names, eminent domain is part of the legal systems in countries around the world. Historically in America, the doctrine has been used to create highways, parklands, military bases, and other publicly used areas and structures. The Kelo case, the attempt of using the taking clause for private property gain, was nothing new:

  • In 2003 Lakewood, Ohio was forcing Jim and Joanne Saleet to sell their property so a developer could build condominiums (IJ Defeats Eminent Domain Abuse in Lakewood, Ohio)
  • in 1998, developer Donald Trump and the Casino Reinvestment Development Authority sought to purchase land from a group of private citizens, including Vera Coking from Atlantic City, New Jersey (The Abuse of Eminent Domain in Atlantic City)
  • In 2011, a small gym in California was forced to defend itself against the city in which it resided, National City, who wanted to turn land over to a condominium developer (Community Youth Athletic Center v. City of National City, et al.)

Some lawsuits are dropped, and some don't get beyond a local or state court decision. Nobody in the Kelo case, however, backed down, and the lawsuit went all the way to the Supreme Court. In the Court's split decision, Justice O'Connor dissented saying, "The Founders cannot have intended this perverse result."

What should you do if your home is threatened?

Home ownership involves many things, apparently including political action.

Since 1991, the Institute for Justice has been taking on private property rights cases. "We represent individuals and owners of small businesses who want to sue the government when its laws violate their constitutional rights," says the IJ website. They specialize in "eminent domain abuse and civil forfeiture."

The constitutionality of eminent domain has prompted new legislation by Congress—H.R. 1944, Private Property Rights Protection Act of 2013 passed in the House on February 26, 2014 and was sent to committee in the Senate. The bill, like so many others, seems to be stalled. Read and track the bill at govtrack.us

Learn More:

Source: Do You Have A Potential Case?, Institute for Justice website; The Castle Coalition FAQ [accessed June 5, 2015]