JLF Memo
Apr. 7th, 2011: - johnlocke.org

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An Eminent Domain Amendment Likely To Accomplish Nothing
By Daren Bakst

The new House eminent domain amendment almost certainly will accomplish nothing. There's no teeth to the amendment for it to take a bite out of eminent domain abuse.

The amendment's language prohibits the government from taking private property except for a "public use." Here's the catch: the Fifth Amendment to the United States Constitution also limits takings for a "public use," as do many state constitutions.

The courts, however, interpret the term "public use" to mean "public purpose" or "public benefit," which are much broader in scope, thereby allowing the eminent domain abuse that is so common. This abuse includes allowing the government to take private property for private economic development. For example, if the government thinks your house should be seized and the property used for an Applebee's, the courts would find that constitutional.

States across the country are scrambling to identify ways to make it perfectly clear that these economic development takings are prohibited. Eight states have passed amendments since the infamous United States Supreme Court case of Kelo v. City of New London (2005). This is the case where the Court held that economic development takings were constitutional, even though the Fifth Amendment limits takings for a public use.

The new proposed amendment doesn't even mention economic development takings or directly address other eminent domain abuses. The hope apparently is that the North Carolina Supreme Court will analyze this new amendment and completely ignore how "public use" is interpreted by the United States Supreme Court and many state courts.

While this would be a new amendment, the "public use" language for all practical purposes is not new to the North Carolina Supreme Court. The Court has acknowledged that takings are limited to a "public use," but it hasn't stopped the Court from interpreting that term to mean "public purpose."

In all fairness, it isn't impossible that this amendment could provide some protection from these abusive takings. It would just be very close to impossible. The amendment puts the ball in the judiciary's court -- the same judicial system that has gotten us to this point where the term "public use" has been gutted from constitutions, including the United States Constitution.

To address eminent domain abuse, the legislature should pass an amendment that, not surprisingly, addresses eminent domain abuse. Proposing an amendment so that the judiciary could, by some miracle, reach an outcome we desire isn't the most direct of approaches to protecting individual rights.

Past versions of
House eminent domain amendment over the last several years at least tried to expressly prohibit economic development takings, and those amendments were easily passed by massive bipartisan votes.

There were flaws with those amendments, but the intent was still to expressly prohibit economic development takings. Now, this new amendment tries to do less when the political make-up of the chamber should lead one to believe that a stronger eminent domain amendment is more likely.

Passing an eminent domain amendment that would likely accomplish nothing is worse than passing nothing. It would take the issue of eminent domain reform off the table for years -- after all, why would future legislatures address eminent domain abuse with a meaningful constitutional amendment if the issue has recently been addressed, albeit by a very weak amendment?

This is the one bite at the eminent domain apple, so the House should pass an amendment that expressly protects citizens. There should be clear language that says the government may not seize private property for economic development, and the language should prevent any end-runs that the government often employs to get around such a prohibition.

It isn't the role of the courts to give meaning to an amendment that says nothing. It's the role of the legislature to give the courts an amendment that has meaning. The House should be commended for being concerned about eminent domain abuse. Now they need to do something about it.

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