Definition
Eminent domain (also called condemnation or, in the United Kingdom, compulsory purchase) is the legal power of government to seize private property for public use, with compensation. The power is recognized in the U.S. Constitution's Fifth Amendment Takings Clause (nor shall private property be taken for public use, without just compensation).
The boundary question is what counts as public use. The Fifth Amendment was originally read narrowly — public roads, schools, military installations. Twentieth-century judicial interpretations expanded the boundary substantially. By mid-century, public use had been read to include parks (1925), slum clearance (1954), urban renewal (1954), highway construction (1956), and even economic development projects benefiting private developers (2005, Kelo v. New London).
Why eminent domain matters
The mid-century expansion
The legal expansion of eminent domain across the mid-twentieth century is a key part of Robert Caro's The Power Broker and parallel histories of American urban renewal.
1925 — Pauchogue v. LISPC. The New York Court of Appeals upheld Moses's seizure of the Taylor Estate (which became Heckscher State Park) under a survey appropriation clause Moses had inserted into the LISPC's enabling statute. The decision's language about broad legislative discretion in defining public purpose was so capacious it would be cited for decades.
1954 — Berman v. Parker. The U.S. Supreme Court unanimously upheld the District of Columbia's slum-clearance program, ruling that public welfare in the eminent-domain context was nearly unbounded. The decision authorized the urban-renewal programs that, over the next twenty years, displaced hundreds of thousands of Americans.
1956 — Federal Aid Highway Act. The Interstate Highway System's right-of-way was acquired through eminent domain. The Cross-Bronx Expressway, Lower Manhattan Expressway (proposed, never built), and similar urban highways across the country used the doctrine to bulldoze through residential neighborhoods.
2005 — Kelo v. New London. The U.S. Supreme Court ruled 5-4 that economic development — taking private land to give to a private developer in exchange for promised tax revenue — counted as public use. The decision produced backlash; most states passed restrictions.
The Caro critique
In The Power Broker, Caro argues that the doctrinal expansion of eminent domain was driven less by judicial principle than by political alignment with operators like Moses who had specific projects to execute. The 1925 ruling was politically pre-decided (Moses had been building Heckscher Park before the appeal); the 1954 ruling came after fifteen years of Moses-style slum-clearance precedent in New York; the 1956 highway program was politically inevitable by the time the courts encountered it.
The Caro view is that the legal doctrine was downstream of operating reality rather than upstream. The judges were ratifying what operators had already built.
Modern boundary questions
The contemporary debates over eminent domain include:
- Economic-development takings. Post-Kelo state restrictions vary widely. Some states have effectively eliminated Kelo-style takings; others have not.
- Pipeline and infrastructure rights-of-way. Modern pipeline routings (Dakota Access, Keystone XL) use eminent domain to cross thousands of private parcels. The disputes are legal and political.
- Indigenous land. Federal takings of treaty-protected land for highways, dams, and infrastructure have been a sustained source of conflict, most recently visible in the Dakota Access Pipeline disputes.
- Just compensation as practical reality. Even when takings are clearly legal, the just compensation the Fifth Amendment requires often falls far short of the actual loss — relocation costs, business disruption, social-network destruction. The compensation regime systematically underpays.