Senior Seminar in Research and Writing in Jurisprudence, Montclair State University, Montclair, NJ

1. Transfer of Property Rights: Finding the “Public Good” in Eminent Domain By: Christine Aramini Senior Seminar in Research and Writing in Jurisprudence, Montclair State University, Montclair, NJ Hypothesis It is hypothesized that current law regarding eminent domain transfers property rights to private enterprise without consideration of “the public good.” An interdisciplinary approach is essential to explore this problem because no single disciplinary perspective can adequately address the issue of eminent domain. Disciplines: Political Science and Law Discipline of Political Science Discipline of Law • The discipline of Political Science sees the issue of eminent domain as essentially being rooted in a “power struggle” over claim to property. • Some of the major issues to be examined by a political lens within this issue are: political reactions, divide of various political parties, politics and ideologies of the Supreme Court Justices, as well as grassroots and reform movements. • The Supreme Court Case Kelo v. New London raised the possibility that a city could simply transfer a private home to another private owner, tapping into powerful fears of unchecked government. • - In the past half century, only one other Supreme Court case has sparked a similarly extreme reaction – Roe v. Wade. • The discipline of Law sees eminent domain as a Constitutional/Legal issue and determines that cases should be decided in accordance to Constitutional Law and the Natural Law that guides it. • The Fifth Amendment to the United States Constitution sets forth that the federal government cannot take private property for public use without just compensation. This “Takings Clause” has been the primary Constitutional limit on eminent domain. • By 1968, with the enactment of the Fourteenth Amendment, “without due process of law” had come to mean “without just compensation. • - The “public use” portion of the “Takings Clause” has raised many questions . • -- No general definition of what degree of public good will meet the constitutional requirement for “public use” can be framed and the final determination rests with each individual court as to what constitutes as a “public good.” • Touchtone Case: Kelo v. New London: • The Supreme Court found that “public use,” includes private economic development. • Homeowners in New London, CT attempted to stop the city from taking their homes to make way for private development including a hotel complex and condominiums. • The outcome of this case elicited much controversy and outrage over the topic of eminent domain and what exactly is constituted as a “public good.” Conclusions: The power of eminent domain rests mainly within the hands of the appointed and elected officials and those on redevelopment boards and other authorities. These officials must carefully consider their exercise of eminent domain power and the people should organize together in order to help the officials realize the “public good,” that will best serve their needs. : SRS, 2009