Chad Perrin: SOB

17 June 2008

Kelo Day and Eminent Domain

Filed under: Liberty — apotheon @ 09:19

(Note: I’m not a lawyer. All legal interpretations in this SOB entry are the interpretations of a layman. None of this is intended to be taken as legal advice.)

On 23 June 2005, the Supreme Court of the United States ruled in the historic Kelo v. New London case that Susette Kelo’s cottage could be seized by the government to be sold to a land developer who wanted to build a resort, under the Eminent Domain clause of the Constitution. This clause provides for the government’s privilege to seize property “for public use”. The clause appears at the end of the Fifth Amendment:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

In other countries, the doctrine of eminent domain may be called compulsory purchase (the UK), resumption (Australia), or any of a number of other terms. Most of them make oblique reference to the notion that the sovereign power of government (e.g., the crown — or, in the case of a more democratically constituted nation, the crowd) actually owns all the property within the nation’s borders, and we the people are subjects of that sovereign power who merely hold property in fee simple. That’s roughly equivalent to subletting the land, except that estate in fee simple is generally granted once rather than for a period predefined by a lease agreement as is normal for subletting something in current practice, and in fact estates in fee simple can be inherited by one’s designated heirs.

This practice of considering all land the property of the government is known as feudal title. One holds feudal title to land when it is held in fee to a liege. “Feudal” and “fee” are, in this usage, different part of speech forms of the same word. If you’re familiar with the history and usage of the terms “feudal” and “liege”, you should be getting pretty annoyed at the implications of holding land solely in fee to the government. In any case, this ties in with some early controversy over the use of the term “eminent domain”. As a legal term, it was put forward by a Dutch jurist (i.e., judge) named Hugo Grotius, who called it dominium eminens. Our more familiar term, eminent domain, is merely a translation of that term into English. Another seventeenth century Dutch jurist named Samuel von Pufendorf suggested the term “dominium” referred more properly to private ownership, and the legal theory of superior ownership by a superior sovereign power is more properly called imperium eminens.

There is a contrasting state of ownership, where property is held free and clear of governmental claims, instead of the subordinate “ownership” of feudal title. That state is known as allodial title. In theory, if you hold allodial title to property, that property cannot be legally “resumed” by the government because that property is not part of the government’s eminent domain. Sadly, it is nearly impossible to aquire allodial title to land. The government, in legal theory, holds allodial title to the land on which your house is sitting — and you hold only feudal title (title subordinate to that allodial title). There are some states in the United States that offer a means of acquiring allodial title to your land (well, two in particular of which I’m aware — Nevada and Texas, and I think Nevada stopped offering allodial title), but the costs are truly prohibitive, and I don’t think the government considers that allodial title to be heritable (it would devolve to the state upon the title holder’s death). These are limited forms of allodial title, too, where one does not have full sovereign claim to the property, but merely exemption from some of the burdens of feudal title. In theory, even this limited form of allodial title should exempt you from land-grabs under color of eminent domain, however — though you’d probably have to fight it all the way to the Supreme Court in practice.

A perhaps logically excusable explanation for what happened in Kelo v. New London would allow the ability to seize Ms. Kelo’s cottage and the property on which it rested under the doctrine of eminent domain was predicated upon a “typo” in the Fifth Amendment. A smudge in the last sentence is taken to have been an intentional comma, implying a sentence structure in the eminent domain clause that provides for land to be seized for more than solely “public use”. The Fifth Amendment with the comma inserted, looks like this:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Of course, with the semicolon, the comma is rendered grammatically clumsy to say the least, and a case could still be made for the comma not making the semicolons subordinate to it in the structure of the sentence, but evidently the Supreme Court didn’t see it that way, if such was how the decision was formulated.

Instead, the wholly inexcusable explanation is that the Supreme Court simply decided that the fact the private developer’s resort would generate tax revenues, create new jobs, and contribute to a substantive “improvement” of the community in some way was sufficient “public use” to satisfy the eminent domain clause of the Fifth Amendment. This, despite the fact that the qualitative “public use” consisted of nothing more than selling the property to a private developer. This is all founded, at least partially, on an 1832 Supreme Court decision indicating that “public use” meant “public benefit”, and not solely “public occupation” of land. Personally, I think the Supreme Court Justices in 1832 might have been confused about what the word “use” means.

Well . . . the third anniversary of the Kelo v. New London decision is fast approaching. The Institute for Justice, a nonprofit legal foundation devoted to protecting the rights and liberties of US citizens that helped Susette Kelo fight New London all the way to the Supreme Court, is asking for donations to the cause of fighting eminent domain abuse this Kelo Day. It might be worth your while to donate on the 23rd of June this year.

All original content Copyright Chad Perrin: Distributed under the terms of the Open Works License