Rethinking eminent domain: The Boston (MA) Globe, 9/25/05

By John Stilgoe

In the end, nature rules. Congress and state legislatures routinely flaunt their power, forgetting for years at a time what rare tsunamis, earthquakes, droughts, and hurricanes remind. Insurance companies recognize acts of God, and even secular jurists use the term easily. Government builds sea walls, storm drains, and bayou levees, but it scarcely controls nature, even in ordinary storms. A major hurricane can erode government power as a raging river tears away a dam, and the aftermath of a hurricane can skewer mere politicians and even laws and jurisprudence.

Hurricane Katrina offers a lesson for many [Boston] area residents, and especially for local politicians and judges interpreting the law of eminent domain. When a divided Supreme Court recently determined that a Connecticut city might take solid homes and prosperous businesses against their owners' wishes in the name of economic redevelopment, it precipitated an ongoing debate about the modern meaning of eminent domain. Hurricane Katrina jams the debate backward on itself, into the quagmires of history.

Essentially, eminent domain is the American term for the right of civil government to take private property against the wishes of owners. Ordinarily, the property in question is real, meaning land and the structures upon it, and the Constitution guarantees owners not only due process, but just compensation.

The legal concept is extremely old, involving feudal rights and responsibilities, and even the divine right of kings. In the early Middle Ages, feudal lords held their estates at the will of the king, enjoying the income from serfs but obligated to serve the king, especially in wartime.

In peace or in wartime, the king might requisition the home or lands, and even the horses and serf, of any lord, as well as the military service of the lord himself. At first, only fools opposed monarchical requirements, but when the British lords forced their king to sign the Magna Carta in 1215, they began limiting royal prerogatives. No longer could the king alone requisition property. At first he and his barons had to do so, and eventually the king, the House of Lords, and the House of Commons had to agree, through the court system.

Taking private property against its owners' wishes and with no recourse helped cause the American Revolution. British generals quartered soldiers in the homes of Boston residents, taking up space if not requisitioning entire houses at their whim. After independence, the young nation limited peacetime eminent domain powers, denying the federal government even the power to build roads. Congress can establish roads, but it still cannot build them: The military and interstate highway system curves around the prohibition by existing as a weapon first and foremost.

Only in the 1840s did some states, and subsequently the federal government, extend the power of eminent domain to private corporations, chiefly canal, toll-bridge, and railroad companies. Such transportation improvements benefited the communal good, yet proved so inflexible in siting that individual landowners, especially in deep valleys, might stop them from being built. Ordinarily, government used and still uses eminent domain powers to build roads and public structures, especially sea walls, schools, and fortifications, but it has used its powers to stimulate economic development.

Urban renewal disasters of the 1960s, such as the wholesale destruction of Boston's West End, forced local legislators and city planners to reexamine using eminent domain to renew so-called blighted areas. No one could define the meaning of blighted, and passing property from private hands through redevelopment authorities to private developers smacked of corruption.

South-of-Boston residents, especially those in coastal towns, need to confront the nasty implications of the recent Supreme Court decision in a post-Katrina era.

If a Category 5 hurricane wipes houses from Houghs Neck, Minot, Humarock, or the coast of Plymouth, Marion, or Mattapoisett, might not the remaining citizens take kindly to an offer to replace the houses with a resort hotel or other business that generates lots of tax revenue while requiring few services and sending no children to school? City councils and town meetings would be voting not to destroy existing homes and businesses, but merely to buy what lots of land the sea had not devoured, and they would be using eminent domain powers to shift the costs of rebuilding streets and other infrastructure from municipal to private hands.

Hurricanes blight neighborhoods, and even entire regions. The south-of-Boston region is vulnerable to hurricanes, and might ask its legislators and congressman to restructure eminent domain laws to prevent post-hurricane chicanery.

The Boston Globe: www.boston.com

Norwell resident John Stilgoe is Orchard Professor in the History of Landscape at Harvard University