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Eminent Domain

Can the government seize your house to build a shopping mall?  Get a legal expert’s take on the evolving power of eminent domain.

By
Adam Freedman
August 19, 2011

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Today’s topic: Eminent Domain 

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

What is Eminent Domain?

Eminent Domain is a term used to describe the government’s power to seize private property when necessary for public use.   This power has been around for centuries, but as I’ll explain in a minute, there has been great controversy in recent years about the limits of eminent domain.  In a nutshell, the question remains whether the government can seize your house to make way for a shopping mall.

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The Fifth Amendment Requires “Just Compensation”

The Fifth Amendment to the Constitution provides the basic legal framework for eminent domain.  That amendment, of course, has lots of great stuff like due process and protection against self-incrimination, but the very last clause of the amendment states that private property shall not “be taken for public use, without just compensation.” 

That clause imposes two limitations on the power of federal and state governments: first, any taking of property has to be for a “public use.”  Secondly, the government must provide “just compensation.”   In some cases, parties quibble about what constitutes “just compensation,” but the more controversial aspect is what qualifies as “public use.”  After all, it’s nice to be compensated, but most property owners would rather not have their property seized in the first place.

What is Public Use?

Traditionally, the requirement of public use was interpreted narrowly, as referring to property that could be directly used by all members of the public, like a park or a highway.   But a broader definition began to appear in the post-World War II era.

In 1954, the Supreme Court held that economic development could be a legitimate “public use” to trigger eminent domain power.  In the case of Berman v. Parker, the court upheld a federal law that allowed the government to condemn properties in certain depressed areas of Washington, DC and, potentially, to transfer those properties to private developers in the hope of sparking economic development.

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