Public Power, Private Gain
Foreword by Douglas W. Kmiec “Government is instituted to protect property of every sort,” wrote Madison, and for this reason, “that alone is a just government, which impartially secures to every man, what- ever is his own.” This precept of justice was embodied in the Fifth Amendment’s pro- tection of private property, where by constitutional text, property can be taken only for public use and upon the payment of just compensation. For reasons that are more regrettable than rational, the courts have greatly relaxed the public use requirement. Inevitably, this invites the taking or eminent domain power to be misused—either by inefficient or corrupt application or both. The extent of this abuse is widespread, but until recently, largely unaddressed—in part because isolated landowners confronted with costly and cumbersome condemnation procedures seldom have the legal or political wherewithal to stand against the winds of power. The public advocacy and litigation defense of the Institute for Justice is chang- ing this by standing with landowners singled out for disfavor. Whether family, farmer, or small merchant, these owners wish only for what Madison said our Constitution guaran- tees—the protection of property. This comprehensive report, prepared by the Institute for Justice and senior attorney Dana Berliner, carefully catalogues the extent of the problem of eminent domain abuse. It illustrates how municipal good intention, often for urban redevelopment or economic promise, can be unfairly built upon the rightful ownership of others. When projects are carried out heavy-handedly and unnecessarily, not through voluntary transaction, but coercion, the protection of property is eroded and our bedrock freedom to decide upon our own course is worn away.
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