Steven Eagle on Eminent Domain

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Steven Eagle, George Mason University law school professor, appeared today on C-SPAN’s morning show (39 mins @ 34:50) discussing the origins of eminent domain and its drastic expansion prior to and following the 2005 Kelo decision.  Eagle gave a superb introduction to the abuse of the eminent domain power and the failure of congress to address it. In fact, governments continue to delegate their eminent domain powers to utilities and railroad companies. The callers were eloquent in relating their own abuses from government. Eagle’s Cato Institute monograph on property rights and eminent domain can be found here; his vita  listing books and links to articles is here.

In his Kelo dissent, Justice Thomas notes the originalist scholarship on “public use” and how far current practice deviates from it. He cites the work of Eagle’s colleague, Eric Claeys, “Public Use Limitations and Natural Property Rights.” Thomas also refers to the natural right to own property, I believe the last mention of natural rights in a Supreme Court opinion.  (“The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.””)

Given the interest of developers in eminent domain, it is not entirely surprising that Republicans in California supported the continued existence of redevelopment agencies, while Democrats favored abolishing them (the pro-property rights position). Redevelopment uses eminent domain to develop shiny new property on “blighted” areas. Redevelopment agencies have defined blight as the presence of houses having only one bathroom, no central air conditioning, and only a bedroom or two. The politics of the issue are somewhat complicated by the role of Proposition 13′s limit on property tax increases, but that’s an issue for another day.