50 State Report Card: Tracking Eminent Domain Legislation Since Kelo

Eminent domain authority carries with it tremendous responsibility. Early in our nation’s history, the U.S. Supreme Court even described it as “the despotic power.” Quite simply, it is the power to remove residents from their long-time homes and to destroy small family businesses. Thus, as the Founding Fathers understood, it is a power that must be used sparingly and only for the right reasons. This understanding is reflected in the Fifth Amendment to the U.S. Constitution that states, “[N]or shall private property be taken for public use, without just compensation.” Most states’ constitutions have identical or similar language—language that is supposed to prevent the use of eminent domain for private benefit by restricting its exercise to only true public uses, like roads, fire stations, and schools.

For most of our nation’s history, courts stayed true to the plain language and intent of the federal and state “public use” clauses, and prevented the taking of property for private benefit. However, those takings began to proliferate as public use was interpreted more broadly. The most significant expansion of the term came with the incorporation of “blight” removal as a public use. At first, blight was used as a justification to remove properties that were real threats to public health and safety (what were historically considered public nuisances, the abatement of which was always allowed pursuant to the government’s police powers). Over the past several decades, however, the definition of blight has become so expansive that tax-hungry governments now have the ability to take away perfectly fine middle- and working-class neighborhoods and give them to land-hungry private developers who promise increased tax revenue and jobs.