The trend underneath three centuries of American property law is a slow, contested expansion of one government power: the authority to take private land. What began as a tool for roads and bridges now, in the view of its critics, lets officials hand one owner’s property to another on the promise of bigger tax receipts.
The concept traces back to the Latin term Eminenes Dominium, a ruler’s power to appropriate private property for public use regardless of the owner’s consent. America’s founders feared that power enough that an early Supreme Court decision called it “the despotic power” — so the Constitution’s Fifth Amendment fenced it in: “[N]or shall private property be taken for public use, without just compensation.” Two limits follow. The taking must serve a public use, and the government must pay.
For most of the 19th and early 20th centuries, that meant true public works: roads, bridges, parks, public buildings. Courts later bent the rule for tightly regulated private companies — railroads and utilities laying track or transmission lines — on condition the public got equal access.
The shift came in stages. In 1954, in Berman v. Parker, the Supreme Court upheld urban renewal in Washington, D.C. and quietly rewrote the standard, transforming “public use” into a “public purpose” as defined by a legislature or agency. Governments responded by stretching what counted as blight, condemning sound properties and handing them to private developers. In 1981, in the Poletown case, Michigan’s high court let Detroit bulldoze an entire neighborhood — some 1,000 homes, 600 businesses and a number of churches — for a General Motors auto plant, without even claiming the area was blighted; the rationale was jobs and taxes. In 1984, Hawaii Housing Authority v. Midkiff went further, letting a state dissolve a concentrated land oligopoly and parcel its holdings out to others, with the Court reasoning that a taking’s purpose, not its user, decides its constitutionality.
Pushback arrived in 2004, when the Michigan Supreme Court unanimously reversed Poletown in County of Wayne v. Hathcock, rejecting the idea that one entity’s profit-seeking counts as a public use merely because it helps the general economy. But a year later the U.S. Supreme Court ruled the other way. The 2005 decision in Kelo v. City of New London stripped Susette Kelo and six other Connecticut homeowners of their property for private economic development projects — no slum, no blight, just a bet that deeper-pocketed users would earn more from the land.
The consequences were immediate. By the Institute for Justice’s count, the yearly amount of abuse tripled after June 2005, while in the single year following the ruling 31 states passed laws curbing what the decision had sanctioned.
What’s changing now is the counterweight: owners have learned to fight. “A property owner cannot refuse eminent domain as much as challenge it,” explains Bill Thrush, a lawyer quoted in a 2025 legal guide — meaning the owner can force the government to prove the taking meets public-use and compensation requirements. Owners can question the public purpose, challenge the necessity of using their specific parcel, contest the offer — many jurisdictions peg compensation to fair market value — and demand proper procedure.
The shift is not finished. The same clause that built the highways now underwrites redevelopment deals, and each decade’s court adds a gloss. For property owners, the practical lesson is stark: the power to take is old and broad, but the right to make the government justify itself in court is real. Watch this space — the map of that fight is drawn state by state, and 49 state constitutions now carry their own limits.
Sources
- History of Eminent Domain and its Abuse – Institute for Justice
- Eminent Domain: What It Is and How to Fight Back (2026)
