2005 Sep⁠t⁠ember – Backgrounder #46 – Proper⁠t⁠y R⁠i⁠gh⁠t⁠s A⁠t⁠ R⁠i⁠sk?

By: The James Madison Institute / 2005

Executive Summary

Until the United States Supreme Court announced its 5-4 decision in Kelo v. City of New London, many Americans probably had given little thought to the doctrine of eminent domain. In and around law schools, it was widely perceived as an essential component of courses in property law and, in some states, a lucrative specialty for attorneys.

To most of the general public, however, “eminent domain” was not a major concern. Sure, the government could use the condemnation process to acquire private property needed for public purposes such as roads, parks, or schools, but the owners whose property was acquired would be compensated – sometimes quite handsomely.

Moreover, an attentive purchaser using due diligence and common sense often could determine whether all or a portion of a particular property was vulnerable to condemnation by the government for a public use at some timein the future. For instance, if a house or store sat beside a traffic-choked stretch of two-lane road only six blocks from where the six-landing ended, that was a clue that the property’s owner eventually might lose a bit of his front lawn or parking area.

That kind of risk can be anticipated and evaluated. The Kelo decision, however, opened the door for local governments to expand their use of the doctrine of eminent domain in ways that create a great deal of uncertainty and, thus, anxiety among property owners.

The decision, which has been widely criticized by advocates of property rights, did have one redeeming feature, however: It as much as invited the states to respond by enacting their own ground rules for the use of eminent domain authority by the local governments within their jurisdiction. This policy paper is intended to offer helpful background information that policy makers in Floirda (and other states) might use to respond to the Kelo decision’s invitation to act.