Policy Spotlight: Eminent Domain

As one of a number of important issues that nevertheless get little of the attention they deserve, the subject of eminent domain has long been one of the most neglected subjects in political debates. Yet for all of its relative obscurity, the issue is one which could most directly affect the average voter, as it governs under what circumstances the government is able to seize private property for public use (with "just compensation" to the owner), a power necessary to some degree for the smooth functioning of any government, but one that could be easily abused.

The most recent major Supreme Court decision regarding eminent domain was handed down in the 2005 Kelo v. City of New London decision, which dealt with the federal power of eminent domain (governed under the Takings Clause of the Fifth Amendment). A key distinction and argument over the precise meaning of the Takings Clause gained prominence through the Kelo decision: what constitutes "public use"? A valid exercise of eminent domain has always been understood to encompass infrastructure projects such as highways and other public works, but whether the power could constitutionally be used by the government to take property which would then be turned over to private developers is another question entirely. Does a shopping mall—or, as was at issue in Kelo, a pharmaceutical research facility—satisfy the definition of "public use", since it would provide goods and services to the public and create jobs; or would it not, since the property would still be privately owned, use of a shopping mall is much more voluntary than of a highway, and unlike highways, a mall is sustained entirely through the private transactions of voluntary customers?

In the Kelo decision, the debate over what truly constitutes public use or property split into rival liberal and conservative opinions. Four conservative justices—Rehnquist, Scalia, Thomas, and Sandra Day O'Connor, who had authored a previous liberal eminent domain opinion for the Court—argued that it was unlawful for the government to exercise the power of eminent domain only to then turn the property over for private use. Meanwhile, Anthony Kennedy joined with the Court's four liberals in the majority opinion, authored by John Paul Stevens, holding such an exercise of eminent domain to be constitutional.

Since 2005, the Court has heard only one case of any significance regarding the Takings Clause, a decision last year which dealt with what could properly be considered "just compensation", but since the Kelo decision, the primary argument in conservative legal circles has continued to center around the proper definition of "public use". A major future conservative victory on the Court, which would nonetheless probably go unnoticed by the vast majority of the public, would be to one day overturn the Kelo decision—limiting governmental power to more closely mirror the precise wording and intent of the Fifth Amendment. It would not be an exaggeration to argue that such a victory would be overshadowed only by the overturning of Roe v. Wade in substance and long-term impact, and as with that decision, opposition to Kelo should be an aspect of every potential Supreme Court nominee's overarching judicial philosophy.