East St. Louis

There is an interesting article on the use of eminent domain in east St. Louis in a recent Wall Street Journal:

"But to build in an urban area like East St. Louis, Mr. Koman must rely on eminent domain -- the government's power to force a landowner to sell property at what is considered a fair price. The State Street project wouldn't have happened if the city hadn't used the threat of eminent domain to clear about 40 houses and a gas station, Mr. Koman says. Of those properties, only two owners held out for long periods, and one of those buildings was condemned and appropriated through eminent domain after the owner refused to settle." [by Ryan Chittum, Oct 5, 2005, page B1, subscription required]

First, notice that the eminent domain power is described here as the "power to force a landowner to sell property at what is considered a fair price." In contrast, the statement of the power of eminent domain found in the 5th Amendment paints a different picture:

". . . nor shall private property be taken for public use, without just compensation."

Specifically, it is the power to take property. Eminent domain does not involve forcing a property owner to SELL. Plain and simple, eminent domain is the power of government to take private property from the owner of the property.

Second, notice the suggestion that the State Street project would not have been possible without the city's use of the THREAT. This may be a common practice of city government. Instead of deciding on a project, then going out and buying property at prices agreed to voluntarily by the owners of the property, the idea seems to be that city government announces it will use eminent domain. Isn't the implication clear? If you don't like the price your are offered for YOUR property, too bad, we will take if from you anyway because we've got the power to do so.

Now consider how Barbara Geisman, the mayor's executive director for development, sees things

"'. . . . We can't let one person hold up something that the entire city wants and needs.' It wouldn't be possible to do widespread redevelopment in an old, historic city like St. Louis if the Supreme Court hadn't upheld eminent-domain rules in its Kelo v. New London decision, Ms. Geisman adds."

I suppose this is the basic justification for giving government the power of eminent domain, i.e., because of the "hold-out problem." On the other hand, as the mayor's executive director for development describes things, I detect what may be a serious lack of respect for the individual, and in this case, the individual who ACTUALLY OWNS THE PROPERTY. I am also not so sure the potential hold-out problem is sufficient to justify the eminent domain power. Consider one more quote from the news article.

"Eminent-domain opponents, such as the Institute for Justice, the Washington nonprofit law firm that represented the homeowner in the Kelo case, beg to differ. 'The idea that private development in cities can't happen without eminent domain is crazy,' says Dana Berliner, senior attorney at the institute. 'Private development happens all the time without eminent domain. People buy the property: If it's difficult to buy the property, they work around that person or they buy another property.'"

It seems likely that much of the property acquisition can be accomplished by the city purchasing the land just as any one else would be required to do. If at the end of the process of land purchase there are one or two hold-outs then maybe it is justified for the government to have the power of eminent domain. But, of course, as we read elsewhere in the article, city government may choose to start the entire process of acquisition with the public THREAT.