Eminent Domain and Democracy
A democracy is based on the idea that for many purposes, the best decision-making framework is to resolve difficult issues by following the wishes of the representatives of majority opinion. Therefore, when a duly elected group of County Commissioners or a local city council decide that a piece of land would be best used for the public purpose of expanding employment opportunities in the community, it would seem to follow that supporters of democracy would go along quietly with the decision. But there are few legal issues that cause more conflict than a dispute over the use of eminent domain. The idea itself is not the problem. Almost all would agree that there are certain functions in the community (a school perhaps) that are so crucial to its ongoing growth and development that we need to be able to take land for a public purpose. But what in the abstract seems so clear becomes a nightmare, when it is my or your property that is being taken. That property may have been owned and treasured by our family for decades; friendships and comfort zones with local businesses may have flowered as a result of numerous ongoing contacts. We do not want to give up any of these things that make our lives so comfortable. In addition, when eminent domain is used, it is not just something abstract like the community that may benefit. Instead, specific people benefit. Regardless of how the eminent domain argument is made, those who will benefit from the construction and later uses of the land are special beneficiaries who have a vested interest in translating their personal interest into public-benefit arguments for purpose of activating eminent domain. Those being forced to sell their land are quick to point out the private benefits flowing from this alleged public good.
Also lurking not so hidden in the background is a theme developed earlier in this chapter. The more powerful a group is, the more likely it is going to be the party pushing for the use of eminent domain. They, of course, word the issue in terms of the projected public benefit. But opponents wonder out loud whether they are not simply abusing their financial power to achieve yet one more advantage in a market economy where influence is often shaped by dollar votes. Returning to the relationship between democracy and eminent domain, there are a number of questions that arise for a critical thinker pondering any eminent domain controversy.
1. What specific information would be needed to assist in making an intelligent decision about the issues raised in the potential tension between democracy and eminent domain?
2. What ambiguous words need to be clarified before an eminent domain controversy can be fairly decided?
3. How does this issue make it clear that the way a legal issue is framed or understood goes a long way toward telling us who will win the dispute?
4. How would you word the issue here if you were arguing on behalf of opponents to an eminent domain action? Clue: Think about what is required for a decision to be thoughtfully democratic? In other words, democracy relies on majority opinions, but some opinions are better formed than others. What would have to be true before you would support the decision of a majority of citizens?