Eminent domain is the moral groundwork by which government acquires private property through compulsory purchase. The idea holds that to advance the greater welfare of the public, government must be able to use land and other private goods to which it would not otherwise have access. Its present day use is often associated with new road construction and other development such as housing, entertainment, and shopping centers. It is an idea that is gaining favor in American politics and this exercise of power has been growing fast in recent decades. This is part of a dangerous trend away from the moral framework that has made America successful and free. If you own land you should be concerned about whether one day you may be forced to give it up. Even if you don’t own land, think about all the things you could lose if government feels it has the right take. Bureaucrats could wipe your place of work or play or your entire community off the map.
The growing faith in eminent domain policies makes this ever more likely. But still, chances remain that you will probably not lose your property anytime soon. Instead it is very likely, and often true right now, that you will live in daily acceptance of the fact that the roads you drive on, the complex you work in, or the stadium in which you watch the home team were made possible by taking from another through force.
Consider what happened when the Texas Rangers needed more space around their ballpark. After failing to secure the surrounding land for well below market value, the local government used its powers of eminent domain to condemn the land, later turning it over, at no cost, to the Rangers for development. The Rangers were then under the ownership of our present president. (5) Remember also how ready and willing Philadelphia’s mayor Street was to tear down a Chinese-American neighborhood in South Philly for the purpose of a new baseball stadium. (8) Mayor Tom Murphy of Pittsburgh recently planned to tear down blocks of eclectic downtown stores and businesses to create a modern shopping district. The plan has since fallen through, primarily because Nordstrom, the key anchor to the project, decided not to commit. This was despite a $28 million gift from the city just to show up. (7)
Further example of this frightening trend can be found in the community of Chester, outside of Austin [not to pick on Texas or anything]. It is an older suburb with twenty-three small businesses and roughly two hundred households. The neighbors know each other here. County officials want to tear the community down and build an Ikea. “We’re just like family here on the street. It feels to me, if we weren’t poor people, they wouldn’t come here,” says resident Ruth McGruder. (1)
City planners do understand that Chester does not want to be torn down, but they say that progress requires it. Mr. Waugh, the county mayor, explained: “In Chester you have bus depots right next to houses, the roads are too narrow and there is not adequate parking. The people do not have access to good shopping. You would never build a place like that today. We can do better.”(1)
Apparently doing better entails booting families out of their homes and paving the way for an Ikea that will provide greater tax revenue than the present residents. This method of community planning has been catching on at all levels of American government. The number of lawsuits challenging government eminent domain plans has doubled over the last sixty years. By some estimates, the use of eminent domain is now increasing five percent annually. The real growth of this practice is even greater when you consider that in the past, most seizures were for the purpose of constructing military facilities while we were fighting WWII, and later the Cold War. Such explanations are now rare and motivations are more likely to be tax revenue driven. (2)
It is easy to focus on those who lose as a result of government eminent domain actions. Some say it is really necessary to step back and look at the big picture, and see that overall our society is advanced by the sacrifice of a few. Many believe that the primary objective of the government is to serve the “the public good” and that if this requires a flexible interpretation of property rights, it is a small price to pay. People find clear precedents for this idea and its relevance to use of eminent domain in America. Our vast national parklands that preserve the wilderness are a result of such policies. The interstate highway system that we all enjoy is a result. Earlier, the railroads paved the way for America’s economic success. Without government power used to get the necessary land, these great things would not have happened.
One can argue there are examples of positive accomplishments associated with eminent domain. But what if we step back again, and look at the really big picture over history, in our culture, and throughout the world? Turn to the language and philosophy of the documents that define America, and you will find acknowledgment of government right to eminent domain. Enthusiastic legislators are glad to interpret this as an open door, granting a free hand to seize what they need for grand schemes. But if we read the plain English of the Constitution, the message is clearly otherwise. After outlawing double jeopardy, the Fifth Amendment reads “nor shall private property be taken for public use, without just compensation.” The government’s power to seize land and property is phrased in the negative on a list that defines the things government cannot do. Presumably for unforeseeable emergencies, the framers didn’t quite lock the door on eminent domain, but they did required just compensation.
This qualification is losing relevance today. The Property Law Foundation estimates that homeowners are commonly offered only a fourth of the market value of their property in eminent domain cases. (2) Still, some may argue that the needs of the public outweigh the losses of a few individuals. In fact, the American tradition holds that society is made up of individuals with rights and that there is really no such thing as an entity called “the public”. Look again to the language of the constitution and this is clearly the bedrock the framers built upon. Throughout the document it is the rights and sanctity of individuals that is spoken of. No role giving government the responsibility of promoting greater good is defined.
We were once a nation that would start revolutions over any intrusion into our personal property. Minor tax increases triggered the revolution itself, as well as the Whiskey Rebellion and the Farmers’ Rebellion. We are now a people that trust government to serve “the public” at the expense of individuals and ourselves. We grant our government the power to seize money, property, and land. American government at all levels is pleased to fill this dangerous and morally questionable role, but this was not always the case. Thomas Jefferson agonized whether he had the legal and moral right to use public funds for the Louisiana Purchase. Although an unbelievably sweet deal caved him in, he felt it was not his money to spend and that land ownership was not a role of the government. He saw no precedent through which he could use the property of individual Americans to create an opportunity for the whole society.
Not only does the American tradition deny that officials have the right to take from individuals, our strong tradition of property rights is arguably the single greatest engine for growth and progress in history. In It’s Getting Better All the Time, author Stephen Moore states after rigorous statistical analysis, “It seems the one fundamental difference that lead to the advance of Europe, and later America, in economic growth and world influence was a tradition of private property.”(10) It seems humans work best to develop the land and the economy around them when they know it will not be taken away from them. What they need from government is assurance that thieves will be punished. John Locke was probably the single greatest influence on the framers. He said, “The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property.”(10)
In the modern world, we see many countries that routinely seize private property and attempt to utilize it for the public good. A number of nations invite business to make use of seized resources. In Zambia, the majority of economic activity in dollar terms is conducted through such business-government partnerships. (16) Yet we don’t see anyone eager to copy this model. This is not surprising as Zambia is one of the poorest nations on Earth and has dismal growth prospects. If an eminent domain driven policy to get oil companies and miners producing wealth and growth does not work on a large scale in Zambia, simply getting Ikea in town is not likely the best path to growth in Austin.
Government driven policy and government power over ownership are the cornerstones of Socialism. There are no clear examples of successful socialist policy. The National Socialists and the Soviets brought ruin to their peoples, and today we see the governments of Western Europe striving to undo their drift away from liberty and private property. The reason is clear if you compare the status of property rights with the wealth of nations. The Heritage foundation publishes a list entitled “The Index of Economic Freedom” which measures the strength of property rights (among other things, such as government spending) in all nations. (12) Not surprisingly, we find the wealthy nations of the world near the top. The US is freer and has a higher GDP per capita than Japan as well as Western Europe. (13) This relationship holds between Hong Kong and Cuba, South Korea and North Korea, Germany and Nigeria. Exceptions to the rule can be found in countries that have recently made themselves freer. This is the case with Lithuania and New Zealand, both of which have been experiencing growth rates stronger than their surrounding regions as well as the US.
Let us return to America and look at the successes government use of eminent domain have wrought. The western railroads of the 1800’s were completed earlier than would have been possible without the aid of the federal government in seizing the necessary land. Because the original owners’ treaty defined property rights had been declared void, there was little reason to respect their authority on the land. As no clear owner was left with a compelling interest in preserving the value of the surrounding land, the Buffalo were nearly exterminated and the Plains Indian way of life was destroyed.
The Clinton administration recently added thousands of acres to the already huge federal holdings under park management. Presently the federal government has taken about a fifth of the US, largely in the name of environmentalism. Again we see that where there is no clear owner with a stake in preserving the value of the land, management is poor. You may recall some of the fierce forest fires in recent years. In Yellow Stone and Los Alamos and other sites, hundreds of acres have gone up in smoke. Every one of these fires occurred on national lands. Private owners perform the maintenance necessary to ensure flammable brush does not build up. They know their land is more valuable as lush forest than ashes. Furthermore, it has been documented that logging and mining is conducted far more responsibly on private lands than under National Forest Service supervision. (15)
The national highway system and much modern road building are linked to eminent domain. A result of this system has been accelerated urban sprawl and massive reliance on polluting automobiles in the US. Many turn to the government to exercise its authority for the greater good. Some people want regulation and more government seizure of land to prevent sprawl. They seem not to realize the government and eminent domain made the mess in the first place.
It is plain to see that private ownership provides the soundest model for economic growth and moral management of property. If there is any doubt of this, consider also the very nature of government power. The famous economist Ayn Rand said, “The fundamental difference between private action and governmental action–a difference thoroughly ignored and evaded today–lies in the fact that a government holds a monopoly on the legal use of physical force.”(11) This is especially true in case of eminent domain. Imagine that your home is seized for the purposes of construction. You refuse to accept the pittance offered you, and you refuse to move. When demolition teams show up, you still refuse to leave. At this point police will drag you away and lock you up. If you resist, you will be beaten into submission or shot.
This basic course of events is the foundation of all law. It is a just basis when the law is stopping others from stealing private property through violence. But can we dare use threat of violence for the whims of policy makers and bureaucrats and call ourselves moral? Organized crime represents the only non-government organization that uses violence to back policy. Once we recognize the violence inherent in government power, it is plain to see eminent domain should have no acknowledged place as a means of governance.
The growing willingness to make use of eminent domain signals a drift away from such acknowledgment. Along with seizure of land, Americans allow government to seize huge amounts of private earnings. While historically all government spending has remained under ten percent of GDP, at the turn of this century the federal government is taking 20% of GDP. (16) By some estimates government at the local, state, and national levels now take over 40% of GDP. The result of this, apart from reduced economic growth, is a broken democracy. We see the interest groups in Washington scramble for funds and we see politicians that serve the interest groups for votes and campaign money. Lawyers and consultants are growing rich off of this feeding frenzy, but no one seems to stop and think that it is all built on an assumption that government is justified in seizing peoples’ land and wealth. The fact is that this theft does not serve the public good. The policies it funds fail the nation and communities everywhere, as well as violate our long-standing moral tradition.
1) Jones, Charisse. (Jan 26, 2001). Land seized for ‘public use’ — by private firms;
Owners lose property to developers. USA Today; Arlington, Va.
2) “http://www.eminentdomainlaw.net/” (02/09/01).
4) West’s Encyclopedia of American Law.
5) Eric Flesher. (Jan 22, 2001). Eminent Domain in Texas.
The Guardian; Manchester (UK). Start Page: 19
7) Bill Steigerwald. (Feb 2001). Beating City Hall.
Reason; Los Angeles.
USA Today; Arlington, Va.
9) Bill of Rights
100 Greatest Trends of the Last 100 Years.
Cato Inst; ISBN: 1882577973
11) Dead Economists Society.
“http://cac.psu.edu/ jdm114/” (02/09/01).
12) Heritage foundation: 2001 index of economic freedom.
13) GDP per capita table.
14) Range wars redux: Private vs. Government Land Management.
15) Harry Browne. “Why Government Doesn’t Work”
Original St. Martin’s Press Edition, Now Distributed by LiamWorks 1995
16) Stephen Moore. (January 18, 2000). Freedom’s Assets