Eminent Domain, Corruption, and the Constitution

The power of eminent domain is an inherent attribute of sovereignty, not a power granted by the federal or any state constitution. There are significant constitutional constraints on exercises of the eminent-domain powers, however, most notably the requirement contained in the Takings Clause that private property shall not “be taken for public use, without just compensation.” Delineating the boundaries of the eminent-domain power has proven a formidable challenge for courts, scholars, and others, due in part to the sparseness and indeterminacy of the relevant constitutional text and history.

In this Article, I examine how an understanding of the founding generation’s vision of a new nation free of old-world “corruption” sheds light on the limits of the power of eminent domain. In the late eighteenth century, Americans employed the term “corruption” broadly to denote the use of government power to promote private interests at the expense of the general welfare. “Corruption,” in short, denoted not just “quid pro quo” exchanges, such as outright bribery of public officials, but also the systemic societal rot that results from abuses of the public trust.

This history offers a clear lesson for the contours of the power of eminent domain. It makes sense to be wary not just of property condemnations that benefit specific, identifiable private parties, but also of eminent-domain initiatives that create opportunities for those in power to entrench themselves by selecting future winners.