Eminent Domain

Eminent domain was a hot topic in Tennessee General Assembly several years ago. In 2006 I had reported that there were several bills introduced to limit the governments right to exercise its eminent domain powers. Well to be exact there were 59 bills  (type eminent domain in the query area) introduced in both the Tennessee state House and Senate according to the AP report in KnoxNews.

At that time all eyes are on the a joint group bill introduced by Sen. Doug Jackson, D-Dickson.

Of course none of these bills really limited the power or scope of eminent domain in this state.

Originally only the Federal government and the state of Tennessee, as well as the other states in the union were granted the power of eminent domain. Today over 300 cities and 95 counties in Tennessee plus countless other agencies and special incorporated parties such as JEA have been granted the power to take private property for a variety of public uses which have expanded to areas such as recreation, historic preservation, environmental issues, health care as well as the normal utilities, roads, and so on.

A Reason Magazine Article stated:

”   ‘Cities use eminent domain most often as a negotiating tool with property owners,’ explained Peterson, who was speaking for the National League of Cities. ‘Just having the tool available makes it possible to negotiate with landowners.’ Sure it does—in the same way just having a gun available makes it possible for a bank robber to negotiate with a teller.”

Jacob Sullum

Now how about a little law history lesson as provided by Cornell University.

Do you remember that scene in the Spielberg movie “Saving Private Ryan” were the German soldier and the American fighting hand to hand in the upstairs room. In that fight the German obtains the upper position and slowly drives the knife he has taken from the American into the young American’s heart? I can still see it today, the agony that actor portrayed was so real that I could feel the blade myself, as if it were entering my own chest.

Before I ran for council the state of Tennessee did just that to my wife and I through the power of eminent domain. The state proved without a doubt that they are God and that what we own is not ours but the states.

Eminent domain, recognized in both federal and state constitutions, is the power of government to condemn private property and take title for public use, provided owners receive just compensation.

This is also known as despotic power, its exercise was restrained by the need to compensate owners and the requirement that the property taken be put to a “public use.” For years the courts have continued to read the public-use restraint every so broadly, enabling governments to take property from one owner, often small and powerless, and transfer it to another, often large and politically connected, all in the name of economic development, urban renewal, or job creation, such as our Highland Ave. project which I prefer to call “$20 million for 18 inches” or something even more recent as our “$30 million dollar face Lift project.”

”The Fifth Amendment to the Constitution says ‘nor shall private property be taken for public use, without just compensation.’ This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.”

Eminent domain ”appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.”

  (United States v. Carmack, 329 U.S. 230, 241 -42 (1946). The same is true of   ”just compensation” clauses in state constitutions. Boom Co. v. Patterson,   98 U.S. 403, 406 (1879). For in-depth analysis of the eminent domain power,   see 1 Nichols’ The Law of Eminent Domain (J. Sackman, 3d rev. ed. 1973); and   R. Meltz, When the United States Takes Property: Legal Principles,   Congressional Research Service Report 91-339 A)

In the early years of the nation the federal power of eminent domain lay dormant, and it was not until after the War of Northern Aggression that its existence was recognized by the Supreme Court.

In Kohl v. United States any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any State.

The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power, but once this is conceded the ambit of national powers is so wide- ranging that vast numbers of objects may be effected. This prerogative of the National Government can neither be enlarged nor diminished by a State. Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State.

”Prior to the adoption of the Fourteenth Amendment,” the power of eminent domain of state governments ”was unrestrained by any federal authority.” The just compensation provision of the Fifth Amendment did not apply to the States, and at first the contention that the due process clause of the Fourteenth Amendment afforded property owners the same measure of protection against the States as the Fifth Amendment did against the Federal Government was rejected.

However, within a decade the Court rejected the opposing argument that the amount of compensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state ”legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation.

The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.”

It should be borne in mind that while the power of eminent domain, though it is inherent in organized governments, may only be exercised through legislation or through legislative delegation, usually to another governmental body, the power may be delegated as well to private corporations, such as public utilities, railroad and bridge companies, when they are promoting a valid public purpose. Such delegation has long been approved.

This should be changed……. if you really want hamstring the power of government.

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