Eminent domain in the United States of America: a controversial power
| Autor | Paul Boudreaux |
| Páginas | 299-322 |
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eminent domain in the united states of america:
a controversial power
paul BouDreaux*
INtroDuctIoN
In the small town of Weare, New Hampshire, U.S.A., in
2006, the town’s residents voted on a proposal to use the
power of eminent domain to seize the title to a house and
convert it into a “Lost Liberty Hotel.” Why? The owner of
the house was U.S. Supreme Court Justice David Souter,
who had joined the court majority in a highly controversial
decision involving eminent domain. The decision, Kelo v.
City of New London 545 U.S. 469 (2005), held that the U.S.
Constitution’s requirement of a “public purpose” for the use
of eminent domain was met whenever the government made
a plausible argument that eminent domain would benefit
the public, even if the land was taken from a private person
and then transferred to another private person, without the
government’s holding the title to the land. The decision in
Kelo led to a tremendous public backlash by advocates for
private property rights, and helped generate the U.S. “tea
party” movement of libertarian opponents to big govern-
ment, which has dominated the U.S. Republican Party for
many years. The aftermath of the Kelo decision – in which
most of the U.S.’s 50 states changed their laws to limit the
* Profersor de la Facultad de Derecho de Stetson University.
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ability of government to use eminent domain – also shows
the remarkable power of state authority under the United
States’ federalist system of law.
the u.S. coNStItutIoNal rIght
The right to own private property is a cherished aspect of
the culture of the United States. As far back as the Declara-
tion of Independence from Great Britain in 1776, Thomas
Jefferson’s first draft document referred to human right
of “life, liberty, and property,” before he later revised it
to “life, liberty and the pursuit of happiness.” Jefferson’s
ideal nation – never realized in full, of course – was that
of a nation of farmers of small fields, without either very
rich or very poor. With a small population (originally) in a
large country (after the European settlers pushed back the
Indian tribes), American legal policy has always been to
encourage land ownership. In the 1800s U.S. law encour-
aged “homesteading” of western North American, though
which any person could earn the title to land simply by
occupying it and farming it. In the 1900s, U.S. policy sub-
sidized home ownership through techniques such as tax
breaks and government financial bodies that encouraged
private lenders to make loans to middle-class borrowers.
One result of this U.S. love of private property is a great
distrust of the government’s power of eminent domain,
which has led to great legal and philosophical clashes in
the early 21st century.
The United States Constitution, first drafted in the 1780s
and 1790s, contains only one reference to property, in the
Fifth Amendment to the Constitution. The last clause of
this important provision reads: “nor shall private prop-
erty be taken for public use, without just compensation.”
The reference to “taken” plainly was intended to refer to
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