Government Acquisition of Private Property for Public Use: An Analysis of United States Supreme Court Decisions

Article excerpt


Several decisions of the United States Supreme Court on eminent domain and the impact of these decisions were explored. These decisions involved the Fifth Amendment, which provides the legal standard for eminent domain. We reviewed the history of the Court regarding what is "public use" within the Fifth Amendment. Moreover, what the Court interprets as "just compensation" for property taken regarding a "public use" as well as market value were examined. Included in this discussion are intangible as well as tangible property under the Taking Clause. Further discussion includes the landmark cases pertaining to eminent domain, the most recent United States Supreme Court case on eminent domain, and how some states are responding to the United States Supreme Court Kelo ruling.


As early as 1795 the U.S. Supreme Court described the power of eminent domain as "the despotic power; " it is the power by which the government takes someone's property for a public use (Berliner, 2003). Berliner suggested that eminent domain has the potential to destroy lives and livelihoods by uprooting people from their homes and businesspeople from their shops. Further she stated that:

The danger of such an extreme power led the authors of the U.S. Constitution and state constitutions to limit the power of eminent domain in two ways. First, the government had to pay "just compensation. " And second, even with just compensation, the government could take property only for "public use " (p. 2).

The meaning of "public use " is fairly obvious in that such things as highways, bridges, prisons, and courts are for use by the public. Berliner indicated that in recent years, state and local governments have been using eminent domain as part of corporate welfare incentive packages and deals for more politically favored businesses.

According to Meidinger (1980), there are three different interpretations of public use. The most restrictive interpretation requires that the government actually hold title to the property after the condemnation. The next most restrictive definition is that public use means use by the public. Under this definition, public title to the property is irrelevant; what is decisive is whether the property is accessible as a matter of right to the public. The third and broadest definition is that public use means public benefit or advantage. Under this category, neither title to the property after condemnation nor access to the property by the general public is necessary; property may be taken for any objective that the legislature rationally determines to be sufficient public justification.

The issue of eminent domain gained a new level of attention when the United States Supreme Court recently issued an opinion during the 2004-2005 term which, at face value, appears to be critical regarding the taking of private property by the government for a public purpose. The Supreme Court, in a 5-4 decision, issued in the Kelo et al. v. City of New London et al. (545 U.S. 469, 2005) case that the government could use eminent domain to take away private property and then sell it to a private developer. Critics argue that a fundamental principle of the Fifth Amendment is that private property should only be taken by the government for a public purpose; i.e., private property shall be taken for public use and with just compensation.

Most of society was outraged following the announcement of the Supreme Court's decision about the Kelo et al. v. City of New London et al. case (Cohen, 2006). Kelo et al. v. City of New London et al. was a major public use case decided by the United States Supreme Court. In this case property owners sued the City of New London and the New London Development Corporation, a nonprofit development corporation established by the city, to enjoin use of the eminent domain power in furtherance of a comprehensive economic development plan.

Cohen (2006) suggested that most Americans remembered the suffering of the poor and Black African Americans in some of the most expansive eminent domain campaigns in our country's history and the massive urban renewal programs that began around the turn of the Twentieth Century. …


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