'Despotic Power' in the Decade Since Landmark Eminent Domain Ruling

“Eminent domain sounds like an abstract issue but it affects real people,” Alban said. “Real people lose the homes they love and watch as they are replaced with luxury condominiums. Real people lose the businesses they count on to put food on the table and watch as they are replaced with shopping malls. And all this happens because local governments prefer the taxes generated by condos and malls to modest homes and small businesses.”

Federal law, he noted, allows federal funds to be used to support condemnations for the benefit of private developers.

“By doing so, it encourages this abuse,” Alban told lawmakers. “Using eminent domain so that another richer, better-connected person may live or work on the land you used to own tells Americans that their hopes, dreams and hard work do not matter as much as money and political influence. The use of eminent domain for private development has no place in a country built on traditions of independence, hard work and the protection of property rights.”

Alban found a sympathetic ear in the person of Rep. Bob Goodlatte (R-Va.), the committee chairman, who said the nation’s founders understood the importance of property rights, providing protections throughout the Constitution.

“However, despite the Constitution’s robust protections for private property rights, today federal, state, and local governments trample on Americans’ property rights every day in countless ways,” he said. “Local governments exact exorbitant fees from developers in exchange for permits; increasing federal and state regulations prohibit Americans from using their property as they traditionally have and, after Kelo v. City of New London, the government is free to seize homes, small businesses, and family farms and transfer the land to others for private economic development.”

The decision, Goodlatte said, allows governments to “take the property of any individual for nearly any reason.”

“Cities may now bulldoze homes, farms, churches, and small businesses to make way for shopping malls or other developments,” Goodlatte said. “Hopefully, this Congress we will finally be able to enact legislation to reverse the harmful effects of the Kelo decision. No one should have to live in fear of the government snatching up their home, farm or business so that another richer, better-connected person may live or work on the land they used to own.”

Goodlatte emphasized that eminent domain abuse is not the only troubling aspect regarding property rights. A process referred to as regulatory takings -- where the government restricts the use of an individual’s property -- also wrongfully deprives owners of their property, he said.

“Unfortunately, in the vast majority of regulatory takings cases, the property owner ends up receiving no compensation for the taking,” Goodlatte said. “In fact, according to one study, property owners prevailed in less than 10 percent of all regulatory takings cases.  These are troubling statistics given the fundamental nature of property rights under our Constitution.”

Another witness, John Echeverria, a law professor at the University of Vermont, offered a different view, asserting that Congress should not insert itself into the issue.

“Eminent domain is obviously an important governmental power the exercise of which – even when accompanied by just compensation as mandated by the Constitution – can severely intrude on the personal lives of citizens and the operations of private businesses,” Echeverria said. “Yet the eminent domain power is as old as the republic and is essential to achieve many important public objectives.”

“While virtually everyone would prefer that the government not take private property – just like everyone would prefer not to have to pay taxes to the government – the judicious use of eminent domain is a useful, indeed, essential tool for promoting the nation’s long term economic health and vitality,” he said.