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Essay on Eminent Domain
According to Webster's New Collegiate Dictionary (1975), the phrase “eminent domain” refers to “a right of a government to take private property for public use by virtue of the superior dominion of the sovereign power over all lands within its jurisdiction. ”The constitutions of most, but not all, countries require the government to provide compensation when it takes land from private owners by eminent domain. The Fifth Amendment to the US Constitution, for example, provides: “nor shall private property be taken for public use, without just compensation.”
When the government regulates or eradicates a nuisance, it acts pursuant not to its eminent domain power but its “police power. ” Like eminent domain, the police power is an inherent power of government, not requiring explicit constitutional authorization (Freund 1904, §§ 5 and 8). Unlike eminent domain, however, the Constitution imposes no express compensation requirement for police power regulations, where the government is regulating what amounts to an unlawful activity. This makes sense as a matter of both equity and efficiency. If the government had to compensate for restricting land uses such as prostitution and illicit drug making, its regulations would lose their deterrent effect. By the same token, if the government had to compensate for pollution regulations, those regulations would fail to serve the purpose of internalizing externalities.
Whatever the formal and functional justifications for the police power/ nuisance exception, the formal distinction between eminent domain takings and police power regulations has proven problematic in application. It can be extremely difficult for the courts to determine whether the government is exercising one power as opposed to the other. Ernst Freund (1904, § 511) attempted to clarify the matter by distinguishing between government actions designed to confer public benefits – eminent domain – and those designed to prevent public harms – police power.......................
