Eminent Domain Abuses

As its name implies, the Bill of Rights is all about guaranteeing individual rights; exceptions are noted only for extraordinary circumstances such as war or the commission of a crime, and even then procedures must be followed strictly. Two of the

amendments specifically guarantee security in one's home, so it is strange that the Takings Clause of the Fifth Amendment ("... nor shall private property be taken for public use, without just compensation.") implies an exception, "for public use." This loophole addresses one important difficult situation, known as the holdout problem: if a project (e.g. a road or park) requires purchasing land from many people, a very few of them may refuse to sell at the market price and "hold out" for a much higher price that would be impossible to offer to everyone. The power of Eminent Domain, as it is known in the United States, authorizes a government to forcibly purchase land at a price that is "just" (usually interpreted to mean the market rate).

Exceptions should always be questioned, and such a power does pose obvious risks:

• An owner may refuse to sell not as a greedy attempt to negotiate an exorbitant price but because he or she truly values the property at more than its market value. Common examples are an elderly resident, for whom moving would be a shock, and someone for whom the home has strong sentimental value, e.g. someone who was born in the house or whose family has lived there for generations.

• The property may be assessed lower than the true market value, perhaps because of a mistake or dishonesty.

The recent Supreme Court case of Kelo vs. New London has put Eminent Domain in the news. A developer wanted to turn 90 residential acres in New London, Connecticut into commercial real estate, and persuaded the city to help obtain it from the current residents (one of whom was an 87-year-old woman who had been born in her house). The city invoked Eminent Domain under the questionable justification that the developed property would provide greater tax revenue, and thus would constitute "public use". The Supreme Court decision in favor of New London has been largely condemned by people on both the left and right (how could anyone support taking old people's houses and giving them to a heartless corporation?), but its implications are more subtle.

The result was in some ways a surreal inversion from a parallel universe: the left-wing justices, who normally oppose federalism, did not hold that government necessarily has the power to use Eminent Domain for this wider purpose, merely that the US Constitution does not forbid it. State and local governments are thus still able to enact stronger guarantees. The conservative justices, who normally support a stricter interpretation of the Constitution and favor federalism, voted in the direction of increasing individual rights, yes, but via a decrease in the states' power.

The long-term result has been cheering to both federalists and champions of individual liberty, as many individual states and cities have responded by taking action to enact laws and ordinances restricting eminent domain to prevent future New London-style abuses. Perhaps states can be trusted to do the right thing after all? People can always vote with their feet to places like New Hampshire, where takings for commercial purposes are prohibited.

For more information: Institute for Justice • Castle Coalition • Reason Public Policy Institute

...and Responses

Two clever projects have sprung up to draw attention to the Supreme Court decision in Kelo vs. New London. Both aim to take the houses of the very Supreme Court Justices that created the new unjust expansion of Eminent Domain, using their own opinions against them. Both projects have involved some participants in the Free State Project, though some other Free-Staters have denounced this method of protest or retaliation as itself unjust. The Free State Project takes no position on the projects themselves, though our position on Eminent Domain is derivable from our Statement of Intent.

Constitution Park

The Coalition of New Hampshire Taxpayers is promoting a project to seize the New Hampshire homes of Justices Souter and Breyer in order to build a "Constitution Park". The decision will be made by a vote of the townspeople.

More Links: Coalition of New Hampshire Taxpayers

Lost Liberty Hotel

In the wake of Kelo v. City of New London, private developer, Logan Darrow Clements, has applied to take possession of U.S. Supreme Court Justice Souter's New Hampshire residence for the purpose of building "The Lost Liberty Hotel," featuring the "Just Desserts Cafe," and a museum dedicated to the loss of American freedom.

Clements discussed the Lost Liberty Hotel on Fox TV's "Hannity & Colmes" on 7/22/05, and gave a nice mention of the FSP. Also appearing was a Weare resident who supported Clements.

Here are video clips:

"It Could Happen to You!" – Hannity & Colmes follow the Lost Liberty Hotel story. Watch these interviews with FSP participant Logan Darrow Clements:
15 Dec 2005 • 16 Dec 2005

In January 2006, the Lost Liberty Hotel effort will sponsor a rally in Weare, NH, to gather signatures from Weare residents.

More Links:

• Supreme Court justice faces boot from home? Developer wants 'Lost Liberty Hotel' built upon property of David Souter

• Proposal: Replace Souter's home with 'Lost Liberty Hotel'

• Freestar Media's Press release on the Lost Liberty Hotel Project

• FSP Forum thread

• Stopping Eminent Domain Abuse - Reason Foundation

• Eminent Domain Protester 'believes Absolutely In What She's Doing' - The Day