Eminent domain: a fair middle path?

• Author: Peirce, Neal
• Position: Commentary - Column

Sparks continue to fly across the country as a result of last June's U.S. Supreme Court decision upholding this city's use of eminent domain powers to seize homes in a working-class neighborhood so that a private developer could build a riverfront hotel and office complex.

Measures to curb or totally forbid taking of private property for economic development projects have been introduced in at least 35 states, according to the Institute for Justice, the self-described libertarian law firm that represented Susette Kelo and other New London homeowners in their unsuccessful court bid.

Among the states with serious proposals to amend their state constitutions to forbid the practice are Florida, Maryland, Michigan, California, Colorado, and Texas.

There's even talk that political forces on the right may want to propose a series of eminent domain-limiting ballot measures to trigger a turnout of indignant, anti-government voters--a possible replay of 2004 when measures against gay marriage helped to bring out social conservatives whose votes in a few key states may have tipped the presidential election to the Bush-Cheney ticket.

But is the eminent domain issue that glibly tagged politically? A bill in Congress, to limit federal funds for private economic development that uses eminent domain, is co-sponsored by conservative Republicans Sen. John Cornyn and Rep. Richard Pombo on the one hand, and liberal Democrats Sen. Barbara Boxer and Rep. Maxine Waters on the other. Waters is especially concerned about post-Katrina New Orleans, where she fears the "rich and powerful" may abuse eminent domain "to take property that belongs to poor people to get them out of the city."

Justice Sandra O'Connor, in her dissent in the 5-4 Supreme Court decision in the New London case, bemoaned the possibility of state or local governments "replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The Institute for Justice lists thousands of alleged eminent domain abuses. One example: Donald Trump, using the leverage of a local redevelopment agency, trying to evict an elderly woman from her Atlantic City home.

But cases are often murkier than they sound. In New London, complications included a nearby Pfizer research center that inflated property values, and a state law making it illegal to offer people more than fair market value for their property.

And, for every case of abuse, there's an example of condemnation that makes...