Eminent domain stretched too far: Montgomery (AL) Advertiser, 7/17/05


The concept of eminent domain, in which government can take private property for a public use, always has been controversial. But it is still necessary, because there are times when the public good overrides private concerns.

However, the recent U.S. Supreme Court ruling that allows local governments almost unfettered power to seize private property simply to promote economic development goes way too far.

In a 5-4 decision, the justices said local governments have broad powers to condemn people's homes through eminent domain to make way for shopping centers or other private development simply to generate increased tax money for the cities.

Under that interpretation, a local government can seize your home just so some developer can build some mega-mart on the site. The 5th Amendment to the U.S. Constitution prohibits your property form being taken "without just compensation," so you would have to be paid a fair price. But you could lose your home nonetheless.

In a state such as Alabama, most people think the concept of private property rights was handed down by Moses right after he delivered the Ten Commandments. (Or maybe even as part of the Ten Commandments; remember the part about not coveting thy neighbor's house or his field?) So we don't expect to see a rush to invoke this newly enshrined right. But it could happen even here.

For instance, a few years ago in Alabaster, just south of Birmingham, city officials tried to invoke eminent domain to take over private land near Interstate 65 for use as a large shopping center, including a Wal-Mart Supercenter. But landowners fought the effort, the price for their land was jacked up, they sold and the attempted takeover became moot.

Recognizing a good political issue, elected officials and political wannabes as well are falling all over themselves trying to get credit for closing the eminent domain avenue opened by the recent court ruling. The public can rest assured that the Alabama Legislature will end this expanded eminent domain right. Frankly, lawmakers should have passed earlier this year a bill sponsored by Rep. Jack Venable of Elmore County that would have addressed the issue.

But care needs to be taken that a remedy, although much needed, doesn't go too far.There are some legitimate reasons for using eminent domain even when a commercial enterprise is a prime beneficiary -- railroads or power-generating dams, for instance. Both examples can greatly benefit the general public, but there is no denying they also help private enterprises make money.

But well-written legislation that preserves the right of eminent domain for such purposes while limiting it for retail establishments is sorely needed.

That is especially true for large retail establishments that are notorious for taking advantage of public incentives, only to move on to a new site in a few years at the slightest shift in retail buying patterns. While alternative uses are sometimes found, in many other instances they leave behind empty buildings and seas of pavement that hurt the community, with a negative impact over the long haul that might offset completely the influx of tax revenue they generated while new.

While many politicians have been excoriating Supreme Court justices for their eminent domain ruling, in fairness it should be noted that what they basically did was say that the U.S. Constitution did not limit this expanded use of eminent domain, pointing out that the individual states had every right to do so. You would think that some "conservative" ideologues would applaud this as a states' rights decision and a refusal of a federal court to expand federal powers beyond what is enumerated.

Regardless, the Supreme Court decision shifts the pendulum too far from individual property rights. The Alabama Legislature needs to shift it back to where it was.

Montgomery Advertiser: www.montgomeryadvertiser.com