The Emperor’s New Groove is a delightfully fun movie with a simple plot that revolves around Kuzco, a young, egoistic, and entitled emperor of a pre-columbian mesoamerican empire. One central point of the plot revolves around Kuzco telling the leader of a farming village that he’s going to evict the villagers and build his summer home (“Kuzcotopia, my ultimate summer getaway, complete with water slide!”) right on the hillside where his village lives. Throughout much of the movie the village leader, Pacha, tries to convince Kuzco that he should build his summer home elsewhere, but never once during the film does he make the argument that Kuzco doesn’t, or shouldn’t have the right to take that property from them in the first place! It looks like in Kuzco’s empire the legal concept of eminent domain is alive and well.
Kuzco, as the sovereign, arbitrarily decides that he wants the land that Pacha’s village rests on for himself. Basically; “Move poories! This is my land now!” But what allows him to be able to do that? 17th century jurist and father of international relations coined the term for this legal convention. In his work “De Jure Belli ac Pacis” (English: On the Law of War and Peace) he describes this convention as “dominium eminens” or in English, “Supreme Lordship”, but today it’s commonly called “eminent domain”. Through eminent domain a feudal lord could take whatever land was in his jurisdiction and use it for himself, just like Kuzco forcefully displacing the villagers to build his precious “Kuzcotopia”.
This concept was present in English common law at the time of the American secession from Great Britain, and, like most of English common law was adopted into what became American common law.
The United States Constitution did, however, put certain restraints on this power. In the 5th amendment it states that “[. . .] nor shall private property be taken for public use, without just compensation.” In this clause there are two restrictions placed on eminent domain; first, the property taken must be for public use, and second, the person from whom the property was taken must be justly compensated. As a part of the bill of rights, these requirements were only restrictions on the federal government’s taking of property, and not state or local. This was true until 1896 in the case Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, where, through details I’ll discuss in a later piece, the court’s opinion stated that because of the 14th amendment, the 5th amendment was incorporated as restrictions on the states as well as the federal government.
“Public use” and the Supreme Court
Since the vast majority of theft via eminent domain is through state and local governments, the definition of the term “public use” has been, bit-by-bit, broadened to the point of unrecognizability. (Surprise surprise!) You might think that “public use” means that if the government takes your property through eminent domain that it would have to be used to build a park, or a road, or a city building, but the US Supreme Court has a very different opinion of the term “public use”.
In the case Berman v. Parker, the District of Columbia sought to “condemn” (the official legal term for the forceful taking of a property) a property that was a “blight” to the city. This was part of an effort to rid the city of slums, and modernize DC. The District of Columbia sought to expropriate the property considered a “blight”, bulldoze the buildings, and sell the property to a private developer. Again; “Move poories! This is my land now!” The US Supreme Court’s opinion was that ridding the city of “blight” was a “public use” even if the land got sold to someone else afterward.
Another case where the SCOTUS sided with the takers of property was Hawaii Housing Authority v. Midkiff. The State of Hawaii was attempting to lower the price of rent in the state, and at the time there were many people who had leased undeveloped land and built houses on it. The houses belonged to the tenants, but the land the houses were on belonged to the someone else. The state wanted to forcibly take the land from the landowners and give it to the tenants. When brought before the Supreme Court the opinion was essentially: “Yup, keeping rent cheap is totally ‘public use’, and if that means taking property from some private owners and giving it to others, that’s totally the state’s prerogative!” (Incidentally after this happened rent in Hawaii skyrocketed. It seems like the state’s action either didn’t help at all, or exacerbated the problem they were trying to solve.)
The crown jewel of landmark eminent domain cases is Kelo v. City of New London, and hold on to your butts cause it’s a doozy. Susette Kelo, and other plaintiffs brought a case against the City of New London, because the city was attempting to take their homes, and then lease the land to a developer for $1 a year. The developer would then build a complex with an office building (where a branch of the Pfizer Corporation would be located) and a shopping center. The city’s argument before the supreme court? The office building and shopping complex would bring in more tax revenue than residences, and more tax revenue counts as “public use”. Do you think the Court’s opinion was against this dubious argument? If so, you may have too much faith in the SCOTUS. The court was split 5-4 but sided with the City of New London and said that increased tax revenue did constitute “public use” even though that means taking land from private property owners and giving it to another private person.
If you are astounded at how far the term “public use” is “stretched” in this case, you are not alone. In his dissent Justice Clarence Thomas said; “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’”
In an unfortunate turn of events Pfizer Corporation merged with another company and backed out of the contract with the city. To this day the land taken from Kelo and the other plaintiffs is unused. To add insult to injury, after the case was won by the city, they then announced to the plaintiffs that since they had been living on city property for the last five years they owed the city over $10,000 in rent. Luckily the governor stepped in and helped the city officials see that they were being vindictive jerks to the former plaintiffs.
The second requirement put in place in the 5th amendment is that the landowner must receive “just compensation”. This requirement can make it seem like the the forceful taking of property is not an injustice. After all the person is compensated for the land that has been taken from him, and that compensation must be determined to be just. So what have the courts said defines just compensation?
To be considered just, a compensation must be equal to the price of the property if a willing seller were selling the property to a willing buyer, or in other words, the normal market value of the property. In the court’s opinion, offering the market value of the property makes the owner no better, or worse off than he was before. But if that is true, if it is the same thing to have a property or to have the market value of that property, why is it that people do not constantly have a “For Sale” sign in their yard? Well it’s simply because owners value their property more than they value the the money they could get selling their it on the open market. In essence the land is more precious to him than the sum being offered. If it weren’t then force would not be necessary to make the transaction. The very fact that force is needed to make the transaction occur suggests that the landowner, in his own estimation, does end up worse off after the forceful transaction than before it. I am not sure in what moral sense a transaction could be considered “just” if a property owner is offered a certain sum, and refuses, and then the transaction is forced upon him against his will.
There are some very limited circumstances where eminent domain may be justly used. One immediate example might be as follows: Greg buys a plot of land, but that plot of land is surrounded entirely by Larry’s plot of land. Since Larry doesn’t like Greg he tells him; “You can’t come on my property”, thereby either trapping him in his property, or excluding him from access to it. These kinds of scenarios, though, would be best left to a court, and not to a legislature. If the power of eminent domain was taken from the federal, state, and local legislatures cases of abuse would fall drastically. Since the court cannot instigate any proceedings, the eminent domain cases would necessarily be brought to it under tort law.
If legislatures were stripped of the power to forcibly take properties, this may cause some inconveniences, however, I would much rather submit to the inconveniences attending to too much liberty than those which attend to too little of it. Especially because eminent domain causes harm to the most powerless in society. In Kuzco’s empire, that means poor peasant farmers, in the US, that means poor neighborhoods like in the case of Berman v. Parker. Justice Clarence Thomas in his Kelo dissent said it nicely; “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.” In order to protect the disadvantaged in our society we must at least sharply reduce the powers of the state concerning eminent domain, what would be better, is taking this power from the legislature entirely. Otherwise when the government takes people’s’ homes and they ask, like Pacha did to Kuzco “But where will we live?” They government will respond “Don’t know, don’t care!”