Thanks to Chip Taylor and No Blog Here for the links about the Wayne County v. Hathcock decision. (More coverage at How Appealing.)
No Blog Here writesIs this true? Do other major metropolitan areas have the ability to take land and give it to other private individuals? I know Louisville KY, recently took land via eminent domain to build a bridge across the Ohio River, but that isn't a private venture. What’s the story?
The answer is that almost every state, as well as the federal government, allows eminent domain to be used for the benefit of private parties, on the theory that any conceivable benefit to the public is enough to satisfy the Constitutional requirement of “public use” (the theory that the Michigan Supreme Court has now finally rejected).There are some exceptions—Arizona, for instance, explicitly prohibits the use of eminent domain for private benefit. But they’re few and far between.
What happened was that in the 1950s, courts started allowing states to take property for slum-clearance projects. The theory was that slums are dangers to public health. Of course, takings for public safety reasons are not actually an exercise of eminent domain at all, but rather, a police power. But courts used eminent domain rationale. And they held that the public use limitation had been watered down considerably during the Progressive Era. For instance, California used eminent domain to condemn a lot of land for Pacific Coast Highway. But PCH wasn’t necessary—there was already sufficient transportation. Landowners sued, saying that since PCH wasn’t needed for transportation. The United States Supreme Court, however, allowed the taking because, they said, recreation is enough to satisfy the public use clause. Rindge v. County of Los Angeles, 262 U.S. 700 (1923). And that sort of made sense, since was a road, and roads were always public uses, right? And courts had long allowed takings for the benefit of private railroad corporations. The theory there was that the government has the right to create roads, so it can let private parties do that. And the government regulated the rates that could be charged and so forth. So courts allowed such takings even though they benefited private parties.
So when 1954 came, and governments started clearing slums, courts allowed this, saying, well, it benefits the public, and that’s enough. After that, economic revitalization was considered enough, because anything that benefits the public… The gradual erosion of the distinction between public and private, building on compromises made from the very outset in American history, led to finally destroying the principle that public use really limited eminent domain, to the point where some textbooks even quote the Fifth Amendment and replace the public use clause with ellipses! Now, anything that benefits the public is generally considered enough. And who decides what benefits the public? The legislature itself! See further Timothy Sandefur, A Natural Rights Perspective on Eminent Domain…, 32 Sw. U. L. Rev. 569 (2003). For more, check out the Castle Coalition’s website. The answer is, yes—your property is at risk almost everywhere. There have been hopeful signs from the Illinois and Arizona courts, and now from Michigan, but we still have a long way to go.
Update: Thanks to Slithery D for the link. The Pacific Legal Foundation’s amicus brief, co-signed by the ACLU Fund of Michigan, is here.
