LD: The use of the state's power of eminent domain to promote private enterprise is unjust.

Resolved: The use of the state's power of eminent domain to promote private enterprise is unjust.

If you know what eminent domain is already, that’s a good start. My guess is that most of you are going to Google it since eminent domain isn’t a common term. Shit, I’d be willing to bet that half your teachers probably couldn’t immediately tell you what eminent domain is off the top of their head so don’t feel bad. You’re stupid, but no more stupid than your teachers, or at least half of them. That said; let's start with the primary term and some basic understanding of the different viewpoints. At this point if you haven’t Googled for a basic concept of what eminent domain is, go do so. I’ll do formal definitions later, but you’ll want to at least have a basic idea of what I’m talking about in the next few paragraphs.

Eminent domain: Now for the sake of laziness (and in your case decent debate) I’m going to limit the resolution to eminent domain in the US. It’s primarily a term used in the US anyway and hopefully the limitation makes for a better debate. The problem with such a limit, is that LD is really a value debate so even though I bound the discussion to US policies and practices (and might throw in a few Canadian references), remember that your arguments should be broadly moral based. Though it’s perfectly reasonable for you to use US examples, remember that in the end, the debate is a value debate.

That said I want to point you to three opposing views of what eminent domain is. All of them hold some truth. The first, which I’ll call the liberal activist view, sees eminent domain as something which is abused and evil for its effects. To quote the Castle Coalition,

“As early as 1795, the U.S. Supreme Court described the power of eminent domain—where the government takes someone’s property for a "public use"—as "the despotic power." Eminent domain has the potential to destroy lives and livelihoods by uprooting people from their homes and businesspeople from their shops.”

The opposing view to that is one which argues the use of eminent domain is necessary for redevelopment and broader community welfare. These two views, of the individual’s rights and of community welfare, are where you will find the larger portion of your moral argument on each side.

A recent New York Times article , started with commentary from developers extolling (vocab word, go look it up) the benefits of eminent domain to communities.

“Bank of America agreed to join the developer Douglas Durst in 2003 in building a 54-story tower in the heart of Midtown Manhattan, giving a psychological and economic lift to a city that was still reeling from the destruction of the World Trade Center. Mr. Durst said he would not have been able to negotiate with Bank of America or other prospective tenants had the state not authorized him to use eminent domain.”

The more moderate viewpoint is the one which most politicians are currently taking. They all recognize the need for economic development and community revitalization but the images of kicking old people out of their homes and fucking over small business owners doesn’t help them get re-elected. No fancy-ass quote here, just understand that the more practical (rather than moral) view is trying to balance the two other sides in a reasonable manner. In California for example, eminent domain can only be used in urban areas and only where the state can demonstrate considerable need for redevelopment. Trying to balance those interests is a hard reality. Washington state and a number of other states and local communities are currently involved in trying to pass legislation that would clarify and/or restrict state powers of eminent domain .

Let’s look at the formal definitions and use of eminent domain. On first glance you might think that the state can’t simply take private property for no reason. This is true. What normally happens is that rather than confiscate property and turn it over to private enterprise, the state will condemn a property. In many cases even the threat of condemnation is enough to get private property owners to sell out.

HUD (Housing and Urban Development) says that eminent domain “is the power of a government body to take private property for public use.” ; This is a fair, but bland definition. It suits the negative well but can be sort of non-topical as the resolution is asking about taking for private enterprise (thus you have to make the link between private enterprise and public use). HUD in particular talks about the typical uses of eminent domain for things like building roads, or building a new airport in a congested urban area.

Now, I used the term condemnation a couple of places above and you’ll see it in reading on eminent domain. The condemnation they’re talking about is NOT the same thing as condemning a property as in deeming it unfit for habitation. Most of the properties condemned under eminent domain are in perfectly reasonable condition. The term condemnation as used in eminent domain just means that the government is taking your shit. The only thing to be decided is how much they’re going to pay you for it. By comparison, condemning a property for things like health of safety violations doesn’t take away the property. Make note of the distinction to avoid confusion. It might also help if you make that difference clear for the judges.

Brief Legal Background: In the US, the 5’th Amendment requires just compensation for takings under eminent domain and further requires that “public use” for the property be demonstrated by the government. The more important affirmative case will be Calder v. Bull, 3 U.S. 386 from 1798 in which the judge decided that taking property from one person for the profit of another person (IE private enterprise) is pretty fucked up. This interpretation of taking private property for “public use” was, for the most part, maintained through the 1980’s. At this point the courts decided that economic development could fall under “public use” and allowed for taking for things like building a GM plant in Michigan. The most recent major case is Kelo v. New London , decided in Feb. 2005. In a split 5-4 ruling the USSC decided that local governments could have pretty wide discretion to decide what constitutes a “public use” in taking and upheld the condemnation of 15 waterfront properties for economic development purposes and improvement of tax revenues.

Now in terms of definitions for Eminent Domain, I would suggest something neutral. While you can later argue about what truly constitutes a “public use” the HUD definition fits pretty well and is appropriate for both sides.

You should also have a general definition for Private Enterprise, but the concept should be pretty common and I leave it to you to find your own specific definition. Similarly, you should have a definition for unjust, but the specific wording is your problem

Okay so on to the case analysis. We’ll start with affirmative. First off consider your options for a value and a value criterion. For a value the first one that comes to mind is Justice, especially since its converse is explicitly in the resolution. Fairness would also apply here although depending on your definition, Fairness might just be a synonym. You have a few other options here such as Individual Rights but the obvious should work for this resolution. For value criterion, I would suggest Cost-Benefit Analysis. In particular this is useful because a good chunk of the legislation passed by states and the federal government restricting usage of eminent domain power uses CBA to determine if a particular example of eminent domain is a public use or not. Depending on your choice for values, Justice or Fairness could also apply as a value criterion. As with most of the resolutions, it depends on how you want to formulate your approach to the case.

There are three main affirmative case points. First that eminent domain is supposed to serve a public use and taking property from one private owner for the benefit of another is not a public use. Second that it constitutes a significant violation of individual property rights and third is that in practical terms the state power to take property has been widely misused and abused.

The “takings clause” of the Fifth Amendment, is itself pretty straightforward. It says that that "nor shall private property be taken for public use, without just compensation.” This establishes two fundamental points. First that private property should only be taken for “public use” and that the owner must be justly compensated. Now the negative will argue that because the compensation is just, the taking of property is just. That isn’t necessarily the case because the taking should also be for a public use. Private Enterprise is the exact opposite of a public use. Private Enterprise is a private, not a public use. Thus the promotion of Private Enterprise through eminent domain violates the Fifth Amendment. While takings for things like building freeways or expanding urban airports might be justified, taking private property from one individual for the benefit of another is a violation of Constitutional rights and is unjust. Courts have held from the late 1700’s through the late 20’Th century in Calder vs Bull that it is reprehensible and unjust to take from one person for the enrichment of another. This is especially true since Private Enterprise does not serve a public use.

The negative rebuttal to this point of course is that Private Enterprise does serve a significant public use. It can be used to improve a local tax base; it can be used to redevelop local economies and infrastructures. In Baltimore for example it was essential for redevelopment and the rise in tourism. Things like jobs and community revitalization serve a significant public use.

Here you could (as the affirmative) begin to ask some questions about the nature of eminent domain. For example, what constitutes due process for something like a government taking of property? What defines a public use? To what extent do we weight the benefits and the impacts of a taking? Is monetary compensation enough for people who are displaced from their homes? Or who’s businesses are closed? Here it helps to establish some of the practical stuff that can be easily extended to moral and ethical arguments in rebuttal and crystallization. For example, if the negative cannot clearly define limits to when Private Enterprise constitutes a legitimate public use, then there are few, if any, moral limitations on the power of eminent domain.

The second main affirmative argument is that a taking which seeks to replace one private property holder with another violates both individual rights, property right sand due process. This is true even if we concede that Private Enterprise constitutes and indirect public use, even though you shouldn’t make that concession. One good example of this violation can be found here in Hawaii. In 2001, the Honolulu City Council tried to get five landowners of beachfront property in Waikiki to sell to Outrigger Hotels for a hotel expansion. The City argued that the expansion, as part of the $300M Waikiki Beach Walk redevelopment plan, would attract more tourists and provide jobs. Arguing for the City, Councilman Jon Yoshimura, who for all you know, could very well be judging you, said that condemning the property would “encourage the parties to negotiate.” Yes, because a fucking lawsuit where the state will take your land is such a nice opening to negotiations. In 2002, the City Council passed a resolution allowing it to condemn the property and then it could turn around and resell that property to Outrigger. Rather than encouraging fair negotiation for sale of property between two private parties, the sate’s use of eminent domain powers simple allows Outrigger to buy condemned property from the City and County of Honolulu. If you’re familiar with the Leasehold Conversion controversy (probably not) that was/still is affecting some of the larger land trusts (ie: KSBE) much of the moral argumentation is the same, saying that the state shouldn’t be involved in the sale use of private property unless there is a significantly compelling (good terminology for cases) public interest. There is little public purpose in the transfer of private property between two private parties. Here you also get one of the most important cross-ex questions the affirmative can ask the negative, namely “where’s the public purpose?” Make it the burden of the neg to prove that there is a public purpose in the use of eminent domain. The state needs to show some public purpose and some public benefit for the exercise of eminent domain powers. Using power of the state simple because it is expedient or for the benefit of a single private party at the cost of another private party violates the core concepts of what it means to have private property. If the state can simply take that property and redistribute it to whomever they deem, then there is no right to private property at all, it is simply a whim of the government. Such abuse of power is immoral and unjustified. As a further note, in many cases, such exercise of power rarely follows any significant effort towards due process.

The third main affirmative point is that when we authorize, on moral grounds, the use of eminent domain to transfer property between two private parties, significant abuses occur. While a few homes might stand in the way of a multimillion dollar development deal, these homes have families living in them. What is the fair market value of 40 years of memories in a home you are forced to move from so that a new shopping plaza can be built? (Good cross-ex question) The abuse occurs because the state is violating the concept of a free market (in which sellers and buyer negotiate to a mutually agree price) to unfairly benefit a single private interest. Some of the abuses are fairly significant. In the Kelo case for example, some residents were given only 30-90 days eviction notice during which they would have to find a new place to live and facilitate that move. The lead plaintiff, Susette Kelo, was served her eviction notice the day before Thanksgiving. Now yes, this is a rather emotion cheery picking on my part, but there are a host of different abuses across the country. From low income families in Florida being evicted to make room for upscale condo’s to hotels in Waikiki taking over private land with the consent of the City Council, abuses occur nationwide and effect thousands of home and business owners. The abuse of eminent domain power is not isolated to a few instances, nor is it necessarily rampant, but it is significant and has life changing effects on the owners of property that has been condemned.

The negative rebuttal to this of course is that eminent domain has many legitimate uses and is often necessary to reduce urban blight and improve economic conditions. For example, in Baltimore use of eminent domain was necessary to revitalize the economy and improve tourism. Organizations such as the Dudley Street Neighborhood Initiative rely on the use of eminent domain to clean up communities and establish a strong neighborhood.

The key to the affirmative side is to push the significance of the taking of property on the smaller owners and the push the idea that the transfer of private property is NOT a public use, even if there are some incidental effects on things like tax base (which, again, you shouldn’t concede unless you really have to).

On the negative you’ll have two main approaches to the resolution, one that argues that eminent domain isn’t really a moral or immoral power at all, it’s just a tool. With this approach you’re more denying the resolution than denying the immorality of eminent domain. There are some flaws with this, but if you run it correctly it can be fairly powerful. The second approach is to argue that the intent of eminent domain is a just one because it servers the needs of the larger community and while it might not be an ideal solution it is the best one for the community. With this you accept that some people are harmed, but argue that because the individuals are compensated and because the public benefits, the use of eminent domain power is justified. It is entirely possible for you to use both approaches, argue that it is neutral tool, and then say that even if it isn’t neutral, it’s certainly not unjust because of all the positive uses.

In the first approach you should approach the resolution as many city and state politicians would. It’s a tough issue because of the clash between public sentiment and public need. As with many things like nuclear weapons, farm subsidies, or trade sanctions, the power of eminent domain is a tool. As with any tool, it has the potential for good use and the potential for abuse. Asking the question in the resolution is akin to asking about the morality of a hammer, pair of pliers or tire iron. The resolution does ask us about particular applications of eminent domain with a specific end in mind. The moral question we are asked to determine isn’t about eminent domain, but whether the promotion of private enterprise is just. The fact that it is a state power adds a level of complexity but we have to keep in mind that the question isn’t about eminent domain, but rather the promotion of private enterprise.

The affirmative will of course ask where the clash is. Just about every time you try to deny the moral question exists instead of negating it you open yourself to attacks on where the value clash is in the debate. Here the clash is relatively clear, even if you try to deny the morality of the question at hand The argument in the debate exists because some people are being deprived of property by the state for what is on face, (and I swear to fuck if you use the term prima facie in a round I will throw things at you) not really a public use. The benefit to the larger community comes at the expense of a few and often indirectly, as a result of the redevelopment rather than as a result of the condemnation. Because there’s the extra step to see the public benefit, the clash exists. It is the role of the negative to clearly establish that link.

In the second approach you establish that link. The use of eminent domain can be justified in many circumstances because of the significant public benefit. The use of eminent domain offends some because the state strips an owner(s) of private property but the necessity of that action to accomplish the public interest justifies its use. We don’t argue that land can be condemned for something like roads, (or is that under contention too? Ask during cross-ex) so the negative needs to make the next logical step which is to say that redevelopment and community improvement is also a significant public use. In California for example eminent domain is used in blighted areas to revitalize the area. Much of this occurs through private redevelopment. When the state of California condemns a property it has particular restrictions in place. It needs to be in a urban area which is considered blighted (go look it up). In those areas condemnation can take place and the land can be redeveloped. This allows for revitalization of an area and improvement across the board for that community. It means jobs for that redevelopment project, it means larger tax revenues for the area and it often means improved infrastructure to facilitate that new development. All of these things constitute a pretty considerable public use for the power of eminent domain. The effect on individual property owners still exists but the action is justified. Another good example of this, mentioned above is the Dudley Street Neighborhood Initiative.

The affirmative rebuttal to this, which holds some merit, is that this action unfairly targets those individuals with the lowest income who are the most disadvantaged. Further, because most of the redevelopment replaces the blighted areas with upscale higher income homes and business areas which prohibit people who got evicted from returning.

The negative can also argue a pretty significant legal precedent in Kelo. As the most recent decision it is the current ruling and it goes to pretty large length to consider economic development (and by extension private enterprise) as a pubic use. The powers of eminent domain are established in the Constitution so that power is pretty secure. The particular application of that power for the purpose of economic development, under the Kelo guideline, is also pretty strong. It would do you well to pull some of the wording from the actual decision. The important distinction to make about the Takings Clause is that it cannot be used to take from one owner for the benefit of another private party, but it can be used if part of a larger plan for community redevelopment. So a City taking a home away from one person so that a billionaire could bulldoze it and build his own home there would be illegal. But because of the positive effects of redevelopment on the community, a plan which uses eminent domain can be considered a public use and therefore justified.

The affirmative rebuttal for this is that there is also considerable legislation against the use of eminent domain. Three states have passed laws banning the use of eminent domain for economic development and more are following. Congress has even approved legislation which is against the use of eminent domain which is primarily for economic development purposes.

Again the negative position should be to clearly make the link between economic development as a public tool and then eminent domain’s public use through economic development. There are many different examples you can draw from to show the positive effects. Be careful that the affirmative, as last speaker can get in the last word, so make sure that you establish early the positive effects of eminent domain power.

Some other links
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=32172
http://www.worldnetdaily.com/news/printer-friendly.asp?ARTICLE_ID=32172
http://www.law.cornell.edu/supct-cgi/get-us-cite?467+229 – Hawaii Housing Authority v. Midkiff which was a precedent case for Kelo is also kind of amusing and you should read it if you get a chance.