Eminent Domain and the Fifth Amendment

By Earl H. Perkins | Published February 15, 2014 |
Thursday Review associate editor

First it was the American Indians, and then came the slaves. Many acted like those decisions only adversely affected those people, but then came constricting laws and excessive taxation. The two-party political system demanded money like a great vampire-sucking squid, providing minimal services in return, while thumbing its collective nose at the citizenry.

The right of eminent domain traces its origins to the Constitution's Fifth Amendment, and was designed—as a sort of balancing act—to protect all concerned parties. Tucked in there, right after the part that says no person shall be compelled to testify against himself, are those key words: nor shall private property be taken for public use without just compensation.

On its surface, it comes across as a slightly innocuous statement, certainly not a potentially dangerous or horrid thing. In fact it sounds rather benign.

One legal dictionary defines it as the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. In more modern times it can be easily understood as that compact between citizens and governments that says that after reasonable debate and discussion, the construction of a dam, highway overpass, water treatment plant, school parking lot or municipal building may—may—require zoning action and a reasonable offer to purchase part or all of someone’s backyard.

Makes me almost want to fall asleep and snore loudly.

However, Columbia University notes that the Fifth Amendment is really the power of the state to seize property without the owner's consent. Now there's something that'll make you jerk up out of your easy chair and look around.

Just a bunch of legal mumbo jumbo, but in actuality it's similar to communism—nice in theory, but a different animal in reality.

Public facilities, highways and railroads were primarily built in the early days of eminent domain, but throughout the 20th Century its power was greatly broadened. Eventually the right of government agencies to take private land and property was expanded to include not only public works projects, but private development projects and business activities which might produce greater tax revenues.

One such case, Kelo V. New London, progressed all the way to the U.S. Supreme Court in 2005. At stake was a massive redevelopment project in Connecticut, supported by the city of New London, Pfizer Pharmaceuticals, and the private, non-profit New London Redevelopment Corporation. The project included a new state park, a resort, restaurant and hotel cluster, office buildings and a research campus for Pfizer and its vendors. The project would bring tens of millions in new revenue to the affected area.

But not everyone agreed. Nine original homeowners challenged the broad assumption that the government’s right to confiscate property (at any price), applied to a mostly private project, and based solely on the “eminent” imperative to rake in more tax dollars. Is the public interest served when the bottom line is economic expansion and tax revenue?

Kelo was one of only a scant few such cases to reach the Supreme Court in decades. The previous case was in 1984, and prior to that there had not been a case since 1954—the famous Berman v. Parker, in which a forty square block blighted area of Washington, D.C. was slated for demolition and reconstruction. Ultimately Congress intervened in the Berman case, making part of its ongoing mission the improvement of the District of Columbia.

Kelo was different, and may have set reset the template. The court ruled 5-4 in favor of New London and its developers. The split decision was an indication of the thorniness of the issue.

The dissenting justices said that “the Court has so greatly expanded the definition of public use that it now includes virtually all exercises of eminent domain.” The dissenters, which included Justices O’Connor, Rehnquist, Scalia and Thomas, also feared that the case would open the door to nearly any form of land and home confiscation, especially when that reasoning is pinned to the fact that for-profit companies can use private property in more lucrative ways than a private home owner.

Justice O’Connor wrote that there would be little to limit the taking of private property, and in tough economic times when home values drop, an individual’s property and land might become a tempting target to developers and local government.

So nowadays, if I promise the right people that I might generate a few more tax dollars, I can have just about anything you own. Those in charge don't care that property has been in your family for five generations, or that you spent all your money on improvements.

By virtue of making grandiose plans that ignore the rights of landowners, politically connected lawyers and big box stores are probably two of the greatest beneficiaries.

The Federal Interstate Highway System was seen as one of the greatest inventions of modern man. I grant you that railroads hauled just about everything, because many roads were impassable much of the year.

That's why President Dwight D. Eisenhower signed the Federal-Aid Highway Act of 1956, championing a system that would connect all parts of the nation. The roadway did that, and so much more.

It ultimately cost $425 million and 35 years to build, spanning 47,182 miles. That means it’s the second longest highway system in the world behind China.

Its creation bypassed much of America, inadvertently starving thousands of small towns and the souls who resided there. The highway construction also wiped out black sections of towns all across America. It wasn't technically a racist or discriminatory practice, because the feds wanted the least expensive route and dealt with society's least powerful sector.

That's right, this country was segregated in the 1950s, with whites living in the nicest parts of town and shopping in the top-flight stores. Blacks were primarily barred from those stores, relegated to the sorriest pieces of land and caused to return there before dark if they were lucky enough to land a job.

Each state has a Department of Transportation, and that's the governmental agency charged with acquiring land for national road projects. Eminent domain's impact on people and communities can be seen in a microcosm by studying a single proposal.

Jacksonville, Florida, is home to an upcoming project, with the Florida DOT planning to widen the Fuller Warren Bridge across the St. Johns River.

Two other parts included in the $136 million project are a flyover ramp for westbound traffic running from Interstate 10 to US 17, and create/modify lanes on I-10 eastbound from the Stockton Street exit through the ramp onto I-95 southbound.

A local non-profit organization has felt blind-sided by the proposal, which should take at least three years to complete. Riverside-Avondale Preservation's mission is to enhance and preserve the area's architecture, history and cultural heritage.

Much of the Riverside-Avondale Historic District may be affected, but the project will directly impact the Riverside Arts Market, the Artist Walk extension of the Riverwalk, Riverside Park and North Riverside.

The group's representatives are unsure how much right-of-way will be needed, and they're very concerned about how many buildings and homes might be displaced.

Carmen Godwin, the group's executive director, is strongly advocating that the proposed project's process and potential effects be addressed before it is funded or approved.

She has advised residents to contact the FDOT District 2 secretary, along with elected officials, to voice concerns about a failure to follow normal and best planning practices, along with potential negative impacts of the project. She has advocated for additional opportunities for public input, but that will almost certainly occur following the project's funding.

Godwin says FDOT has been planning the project since July, 2013, but didn't publicly announce the proposed project until a December 9, 2013, meeting.

She said a public meeting was noticed, but the project wasn't described or identified. Evidently, concerned governmental agencies also did not receive information about the project.

She claimed the proposal wasn't included in FDOT's five-year work program or long-range plan, and the reason it was proposed was to avoid losing $130 million to another district.

The jury is still out on this proposal, but with America's population explosion, I'm sure a similar project is on its way to your neighborhood.