“Government is instituted to protect property of every sort,” wrote Madison, and for thisreason, “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 forpublic use and upon the payment of just compensation. For reasons that are moreregrettable than rational, the courts have greatly relaxed the public use requirement.Inevitably, this invites the taking or eminent domain power to be misused—either byinefficient or corrupt application or both.The extent of this abuse is widespread, but until recently, largely unaddressed—in partbecause isolated landowners confronted with costly and cumbersome condemnationprocedures 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, orsmall 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 attorneyDana Berliner, carefully catalogues the extent of the problem of eminent domain abuse.It illustrates how municipal good intention, often for urban redevelopment or economicpromise, can be unfairly built upon the rightful ownership of others. When projects arecarried out heavy-handedly and unnecessarily, not through voluntary transaction, butcoercion, the protection of property is eroded and our bedrock freedom to decide uponour own course is worn away.
Dean & St. Thomas More Professor of Law,The Catholic University of America; senior policy fellow,Pepperdine University.