I had stated late last week that there would be an upcoming post on eminent domain, so this is where I make my stand on this subject. This issue reared its head lately in the form of the government threatening to use eminent domain in order to seize the land where Flight 93 crashed on 9/11. They are attempting to build a monument to the victims of Flight 93 and it is so important to do so that they are willing to TAKE the land if the owners of the properties in question do not agree to sell it to the US government. Now I am a patriot and all, and the “let’s roll” folks should be remembered for the decisions that they made on that plane in order to save other lives. However, I don’t see where the use of eminent domain in this case is warranted or legal. It is simply another example of where the government believes, in its heart of hearts, that whatever you possess, you only do so as long as they don’t want it.
Let’s begin with a quick review of eminent domain, shall we? Eminent domain, in common law legal systems, is the inherent power of the state to seize a citizen’s private property, expropriate property, or seize a citizen’s rights in property with due monetary compensation, but without the owner’s consent. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development (Definition from Wiki). The term condemnation is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government. When we speak of eminent domain these days, we general think only in terms of “land”, however, the exercise of eminent domain is not limited to real property. Governments may also condemn personal property, such as supplies for the military in wartime, franchises; this includes intangible property such as contract rights, patents, trade secrets, and copyrights.
Eminent Domain is covered, basically, in the 5th Amendment to the Constitution. But not in the way that you think. There has always been eminent domain in America, even prior to the Constitution. We inherited it from England, as a part of common law. In the United States and other democratic republics, what private parties own is not the land itself, but an interest in the property, and it is that interest for which they are entitled to compensation if the government exercises its eminent domain power (Bet you didn’t know that you don’t own the land you own!). This power reposes in the legislative branch of the government and may not be exercised “unless the legislature has authorized its use by statutes that specify who may use it and for what purposes.” Eminent Domain in the 5th Amendment is stated as such:
No person shall be… nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The 5th Amendment did not create eminent domain. As noted above it existed under common law long before the Constitution existed. What the 5th Amendment was meant to do was place some sort of limits on the federal government’s use of eminent domain by limiting it to property taken for public use. The 14th Amendment was later used to expand that limit to the state governments as well. The Supreme Court has dealt with many different cases that have set the course forward for eminent domain. One of the more recent, and controversial cases was from New London, CT.:
The Supreme Court’s decision in Kelo v. City of New London (2005) affirmed New London’s authority to seize non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. The court held in a 5-4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible “public use” under the Takings Clause of the 5th Amendment. Public outcry ensued over the belief that eminent domain powers were too broad. The redevelopment in New London, that was the subject of the Kelo decision, proved to be a failure and as of the spring of this year nothing has been built on the seized land in spite of the expenditure of some $80 million in public funds. For that kind of money, they could have simply PAID WHAT THE LAND WAS WORTH! (link to this information HERE).
Now on to Flight 93 and the proposed use of eminent domain to take the land for a memorial for the crash site. As you recall, the government proposes to build a memorial park on the crash site. The park would be dedicated to the memory and heroism of the 40 passengers and crew who lost their lives when the hijacked plane crashed in Shanksville, 65 miles southeast of Pittsburgh. The plans are for a $58 million, 2,200-acre permanent memorial and national park. The government has acquired roughly 1,700 of the acres they want. The other 500 acres are owned by 7 property owners who have thus far refused to sell.
The National Park Service announced that the federal government will condemn (take) land from the seven property owners. The Park Service stated that it wanted to purchase the property but “these negotiations have been unsuccessful thus far.” However, the property owners dispute that negotiations have even taken place. The announcement came on Friday, according to the Philadelphia Enquirer, that the land owners are being given one week to sell. Failure to do so would force the government to initiate the process of taking the land under eminent domain. Fair market value is the over-reaching goal of this process. Complicating the appraisal process is the abundance of natural resources above and below the land: timber, coal, and natural gas.
Now the first question that I have is whether it is justified, no matter how noble the intention, for the federal government to take 500 acres of land, that has valuable natural resources, for the purpose of a national monument in the middle of nowhere, Pennsylvania? A 2,200 acre park? For 40 people? The NC Vietnam Veterans Memorial is at a rest stop on Interstate 85 near Greensboro. It takes up about an acre and a half. I wish I were kidding about that, but I am not. And for this Flight 93 memorial they need 2,200 acres? And $58 Million? Wouldn’t a nice statue and a plaque do the job for about $100,000? I by no means want to slight the families of the victims of this crash, but how many people do they really think are going to drive out to Shanksville, PA. to honor these victims?
To be fair there is a report on Fox News as I write this (Sunday Night) that is stating that the federal government has reversed course and has decided that it will not move to seize the land for the memorial. I am unsure at the time of my writing this whether that is accurate or not, as it was published the same day as the Philadelphia Enquirer article stating that the deadline has been issued. We will have to monitor it throughout the week and see which is accurate. The Fox News article can be found here: Government Reverses Course on Taking Land for Flight 93 Memorial – Political News – FOXNews.com
There are lots of really good articles out there talking about eminent domain and the abuse of it that is being done by the federal government, states, and municipalities. For example, you can read one HERE from CBS News that talks about abuse of eminent domain. It focuses on Lakewood Ohio, where the city wants to tear down 55 houses, 4 apartment buildings, and multiple businesses to make way for a private developer to build high priced condominiums. The reason cited by the mayor? Tax money. The city needs more money and the best way to get it is to increase the revenue from property taxes, which the condos will do in spades. That does not meet my criteria for “public good”. Does it meet yours?
So in terms of discussion material here, let’s discuss eminent domain. We know that it is legal, as the law and the Supreme Court have ruled it so for a long time. But is it ethical? How does everyone feel upon hearing that you don’t actually own your land, but only the interest in it? That one was a surprise to me. I think I had read it before, but had not remembered it. My position, as I stand coming into this discussion, is that the right of eminent domain is not ethically or morally sound. First and foremost, I don’t feel like the the government should have the right to determine what they feel is the just compensation for the property that is yours. Second, the use of eminent domain seems, especialy since the Kelo decision, to have any limitations. Government needs merely to show that more people will benefit from the seizure than the number of property owners. Finally, if government wants to build something, they can build it AROUND my property if I don’t want to sell.
So I will open this up for discussion. Tell me where eminent domain is ethical. Tell me what public use is so important and so unflexible that I should be forced to give up my property. Take it a step further. Suppose that a war breaks out tomorrow. Should the government be allowed to go out and confiscate every civilian Hummer for use in the war effort? I can’t seem to find a reason in my mind why eminent domain should exist in today’s world. Tell me where I am wrong.