Professors Debate Reach of Eminent Domain
Capital’s Professor Dennis Hirsch and Professor Ilya Somin of George Mason University Law School squared off in a lively and well-attended debate about eminent domain on February 23. The event, co-sponsored by Capital’s chapters of the Federalist Society and the American Constitution Society, focused specifically on the landmark U.S. Supreme Court decision Kelo v. City of New London
. Professor Peggy Cordray, also of Capital, moderated.
Professors Hirsch and Somin voiced contrasting views of the meaning of the words “public use” in the Fifth Amendment’s Takings Clause. The eminent domain power – which allows the government to take private property upon payment of just compensation – may only be used for a “public use.” For years scholars have locked horns over whether the term “public use” should be interpreted narrowly or broadly. In the Kelo
decision, the Supreme Court applied a broad view of “public use.”
Professor Somin, author of “The Grasping Hand,” advocated a narrow view of the term, so as to limit the use of the eminent domain power. He stated that eminent domain should only be used for actual use by the public, such as building highways and bridges. Professor Hirsch argued that the term should be interpreted broadly so as to essentially mean “public purpose,” which would allow the eminent domain power to be used for economic development, even if the taken land would not be open for use by the public.
Professor Hirsch noted that eminent domain has given large cities iconic tourist attractions such as Baltimore’s Inner Harbor and Columbus’s own Arena District. He argued that viewing the “public use” limitation as meaning “public purpose” would allow the eminent domain power to be employed for useful projects that would create jobs and foster economic development.
Professor Somin argued that large, private entities that acquire land through eminent domain do so because they are motivated by profit, not a desire to benefit the public. He argued that eminent domain is frequently used in a manner that disadvantages low-income individuals and those who are not well-informed. He further contended that using eminent domain for economic development was often unsuccessful and tended to private individuals who do not want to be pushed out of their homes and who are unwilling to sell.
On the heels of this interesting and informative debate, Capital Law students had a chance to ask the speakers specific questions and get answers to those questions. The questions ranged from topics on just compensation for taken land, to state law versus federal law and how those laws can conflict in eminent domain cases.