The Most Eminent Domain

The Supreme Court recently took up the issue of eminent domain, the taking of private land for public use. (Hat tip: Kip Esq.) The law on this topic hangs on the Fifth Amendment, which says "nor shall private property be taken for public use, without just compensation." Eminent domain is most commonly associated with a city or state buying out private homes in order to build a highway or school or other public development, where the property taken is converted to public ownership. Over the years, the understanding of "public use" has been stretched beyond public ownership. In the 19th century, the power of eminent domain was used to transfer private land to railroad or canal operators, who were private companies, but operating an important service for public use. In the 20th century, the power was used more broadly to confiscate private land for private use, arguably to achieve a public benefit. Such broader uses have included condemning private homes to redevelop blighted areas, or simply to allow a major employer to build a new plant and create local jobs. The case of Kelo v. New London asks the Court to decide whether the power is practically unlimited, since some public benefit argument could probably be mustered for just about anything. Here in California, eminent domain was nearly used to keep the Oakland Raiders from moving. And with our famous Proposition 13 forestalling property tax reassessments until homes are actually sold, a city or county could theoretically decide to force longtime homeowners to sell just to bump up the tax base.

All this was in the back of my mind as I was listening to NPR on my drive to work this morning, when I realized that I was listening to the "mother of all eminent domain cases": that of the unfortunate Israeli settlers living in the Gaza strip. Their homes and land will be taken by the Israeli government, not to convert to public ownership, but to transfer ultimately in all likelihood to private Palestinian ownership. In one sense, the "public use" could not be more clear or compelling, as the settlement is being vacated in order to purchase peace. If that goal can ultimately be achieved, few would doubt that the price of abandoning some settlements was well paid. But as with Kelo, there is no guarantee that the condemnation will lead to the successful realization of the public benefit sought.

While the power of eminent domain may or may not be much restrained by the constitution, it can always be checked by organized constituent pressure on the elected officials attempting to exercise it. The larger the number of people affected, or the more influential or organized, the more of a spanner they can throw in the eminent domain political machinery. (Which is why, for instance, a couple of Interstate highways stop short in Pasadena.) In Israel, the settlers are all of that: considerable numbers, influential, and organized (especially as the West Bank settlers rightly see their fates closely linked to the Gaza settlers). Yet, the need to break out of the status quo of destructive stalemate is increasingly inevitable. The situation is highly charged and with good reason. The settlers are by nature determined and hyper-patriotic, having chosen to make their homes in dangerous disputed territory in order to serve a once well-agreed national interest. Unfortunately, a new Israeli consensus seems to be emerging that the national interest may now lie in withdrawal from disputed territories rather than hostile occupation. Of course, it's always easier to want a freeway that runs through someone else's backyard. The settlers are the ones being deprived of their homes in order to build the "highway to peaceful coexistence." And they will be well within their rights to speak out, to demonstrate, and to do what they can to shape perceptions of national interest. But I hope the patriotism that motivated them to become settlers in the first place can be re-channeled in new productive directions when they come to realize, as old hard-liner Ariel Sharon has, that this is one "highway" that needs to be built.