In regards to your story about farmers and eminent domain, are
you wondering what legislation might really restrict eminent
domain? Consider this:
Editor,
In regards to your story about farmers and eminent domain, are you wondering what legislation might really restrict eminent domain? Consider this:
1. Don’t forbid it in cases of “economic development.” Justice Stevens, in the Kelo case, pointed out that the term is so vague it doesn’t distinguish one kind of eminent domain from another.
2. Don’t have government keep control of the property. It’s easy for government to retain title and then devise a way to turn control over to private parties.
3. Don’t restrict it to “blight.” That term has already proven so vague that it can be used to justify any taking.
In short, don’t try to restrict a very general term like eminent domain with more generalities. Ask yourself:
1. What do I want to protect?
2. From what do I want to protect it?
3. How much protection do I want to give it?
Thirty years ago, seizing housing for eminent domain would not have excited public opinion. Today it is a horror story. What has changed is the way Americans regard housing. That happens from time to time.
Americans changed their minds about free speech, about slavery and about legal equality. Now they want housing to have as much individually enforceable protection as free speech. Free speech cannot be destroyed by government unless government shows that the destruction of free speech is narrowly tailored to achieve a compelling government interest. Government almost never meets that test. So if you’re thinking of protecting housing from eminent domain, try this: Eminent domain shall not be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest.
That would virtually stop eminent domain over housing in the United States. For more on the Constitutional history of protecting new facts, see this article, which will appear in the November 2006, Stetson Law Review: “Kelo v. New London: Deciding the First Case Under the New Bill of Rights, With a Model Complaint Establishing a Right to Housing Under the Due Process Clause of the Fifth Amendment” (July 25, 2005) at http://ssrn.com/abstract=562521
John Ryskamp, via e-mail
