Fifth Amendment primer

It’s called eminent domain, but for property rights advocates, that term is nothing more than a euphemism for extortion.

It’s a relatively simple concept: Under eminent domain, a government (be it local, state or federal) can take private property if it is needed for a public use or the public good. The fifth amendment of the Constitution guarantees that such a transaction must result in compensation — “… nor shall private property be taken for public use, without just compensation” — but that’s all it says. The Founding Fathers, it seems, saw the potential for tyrannical abuses of that power, but in their typically spare fashion Jefferson and company left us with a scant 12 words to interpret when dealing with one of the most potent of government powers. Such is the curse of living with a living document.

Nonetheless, eminent domain has played a significant role in how this country looks. From our super-highways to our national parks, the big hand of government has swooped down and “purchased” land it needed for the public good. And generally, we the public acceded (as long as it wasn’t our property being appropriated and we got to drive on that highway or walk through that majestic park).

But when a property owner does decline a government offer, the government can condemn the property and force its sale. While landowners have successfully fought eminent domain, such victories have been few and far between. Not everyone has the financial means to engage in a protracted legal fight.

Over the years, governments have broadened the acceptable criteria for exercising eminent domain. Some have used it as a way of clearing “blighted areas” in major cities. The city of Asheville did so in the ’40s and ’50s as a way of eliminating shantytowns tucked away in downtown neighborhoods — whence they had figured in Thomas Wolfe’s Look Homeward, Angel. Many of the displaced African-Americans who once lived in these properties became the first residents of the city’s public housing projects.

More recently, critics of eminent domain have pointed to examples of the policy being used to promote economic development. The Institute for Justice, which bills itself as a libertarian public interest law firm, is one organization serving as a watchdog over eminent domain abuses. The institute, called “the new civil rights activists” by The Wall Street Journal, hosts a Web page (www.castlecoalition.org) that chronicles examples of practices that it feels violate the Fifth Amendment. The group claims that “the government increasingly uses the eminent domain power to condemn property for private uses. … Acting more like real estate agents than public servants, government agencies form unholy alliances with developers in order to force the rightful property owners off of their property.”

The Web site lists examples such as:

• “Removing an entire neighborhood and condemning of homes for a privately owned and operated office park in New London, CT.”

• “Seizing the homes of elderly homeowners in Mississippi and forcing them to move in order to transfer the land to the Nissan [Corporation] for a new manufacturing plant.”

Should the parties involved in Asheville’s parking deck negotiations find themselves in an eminent domain battle, the city will have to prove that the use of the power is indeed for public use. But a legal battle with a church — who very well could finance a prolonged litigation — could prove to be a judicial and political albatross.

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