eminent domain

The Fifth Amendment to the Constitution requires that “just compensation” be paid when the power of eminent domain is used, and requires that the property be taken for public use.  Over time the definition of public use has expanded to include economic development plans which use eminent domain seizures to enable commercial development for the purpose of improving the community [1].  In Calder v. Bull [2], Justice Samuel Chase thought it was preposterous for the government to take one person’s property with no restriction and give it to another private party for their own profit.  
The use of eminent domain has slowed dramatically nation wide as the full build-out of the Interstate System approaches and reflects the fact that needs in the future will be for mostly projects of a local nature such as schools, roads and other local improvements.  The extensive use of eminent domain for such purposes as economic development are currently under attack in many jurisdictions and there is a movement to pass state statues to limit this use.  
Governor Richardson of New Mexico became the first governor to veto eminent domain reform legislation resulting from this recent surge in public interest [3].  The current rule on public use upholding the eminent domain power of state government was generally affirmed by Kelso v. city of New London [4], though the justices recognized that the several statutes or state constitutional amendments further restricting eminent domain by either defining “public use” narrowly in their states or by granting property owners more rights than the federal constitution if they chose.
 Many have taken up the challenge passing temporary statutes as well as constitutional amendments to restrict eminent domain strictly to uses in which the property will be owned by a government entity.  In the case Loretto v. Teleprompter Manhattan CATV Corp [5], Justice Thurgood Marshall struck a blow for private property ruling that because the cable TV company’s use of the property owner’s building was not a public use even using an inch of the exterior of the building trenched upon the owner’s Fifth Amendment “takings clause” rights and held the cable TV company use of that tiny part to be unconstitutional.
In other cases, eminent domain has been used by communities to take control of planning and development.  Such is the case of the Dudley Street Initiative [6 ], a community group in Boston, Massachusetts which attained the right to eminent domain and has used it to reclaim vacant properties for the purpose of positive community development.  
On June 23, 2006 President George W. Bush issued an executive order stating in Section I that the Federal Government must limit its use of taking private property for public use with just compensation, which is also stated in the constitution , for the purpose of benefiting the general public.
 He limits this use by stating that it may not be used for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken [7].  Supporters contend that seizures of private property are necessary to the improvement of communities in many situations in which transactions costs will prevent private parties from reaching efficient use of land.
 When a property owner’s use is improper, the state under its broad police power may ban it as in Hadacheck v. Sebastian [8], where Justice Mckenna held that an owner of a brickyard business was not entitled to compensation because the zoning laws in Los Angeles prohibited his use because it was a nuisance.
 In the United States, the use of eminent domain has been a powerful driver in the development of the country and its defense structure, enabling connections to be created that would have been unlikely without its use.
 In the last century, eminent domain was the tool that enable the construction of the many defense installations during World War II and the Cold Was.  Beginning in the early 1950’s the Interstate Highway System began and eminent domain was used to purchase the 42,000+ miles of rights of way needed for construction.  Without eminent domain the Interstate would never have been built out to its current extent.
Some people assume that land ownership is absolute under the law so long as the property is maintained, but this is rarely the case.  The U.S. Supreme Court’s decision in Kelso v. New London was a severe setback for homeowners and property rights activists.  The fifth amendment to the constitution provides that private property may be taken only for public use and only with just compensation.  
The seizure of lower value property so that a private developer may increase the property’s value by improving it does not meet this standard.  While increasing the property value and, by extension, the tax revenue the property generates may benefit the general public in a broad sense it cannot be viewed to be a “public use” of land.  The construction of highways and roads, airports and seaports, and parks and libraries all meet this standard.
 In her dissenting opinion of the court’s ruling Associate Justice Sandra Day O’Connor wrote “the specter of condemnation (now) hangs over all property.  Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”  It is for this reason that state legislatures around the country have sped to rectify the problem created by the Supreme Court’s decision at the statewide level.  
The motive of profit is, and should remain, strong in our capitalist society.  However, home ownership is the one “key piece” of the American Dream that should never be taken away merely so that an already monied few may profit handsomely.