GUEST COMMENTARY: Eminent domain protections lost in numbers game

Friday, May 27, 2011 | 12:01 a.m. CDT; updated 10:22 a.m. CDT, Friday, May 27, 2011

Flooding one town to save another doesn't make much sense to most people, but that is precisely what the national government has decided to do.

The government justifies its position through a cost-benefit analysis of the action, but people cannot just be plugged into an equation.

In trying to save additional areas from the floods that have ravaged the Midwest, the Army Corps of Engineers decided the best course of action was to blow a hole in one section of the levee that would flood nearly 132,000 acres of farmland, including hundreds of homes. As a result, people lost their homes and their livelihood.

These farmers will miss at least an entire year of productivity even after they rebuild their homes. And to make matters worse, the government has not reimbursed them as required by the Fifth Amendment.

The Fifth Amendment of the U.S. Constitution requires the government to provide just compensation when private property is taken for public use, known as eminent domain. Of course, the Supreme Court has loosened the public use requirement in recent years, particularly in the infamous Kelo v. City of New London.

In the Kelo decision, the Supreme Court upheld the action of New London city leaders when it seized low-income homes in order to build new upscale residences. Because the high-income homes would produce greater tax revenues, which could then be used by the government for the benefit of all citizens, the court decided the public use requirement was satisfied.

In other words, the government can take your home, so another person can build a new, bigger home as long as that person will pay more in property taxes than you. Owners of inexpensive homes, it seems, don't do as much for their community as owners of expensive ones.

It should come as no surprise, then, that when Missouri appealed to the Supreme Court to stop the Army Corps of Engineers from blowing the levees along the Mississippi, the Supreme Court refused to even hear the case. The Supreme Court has loosened the public use requirement to a point where it is no longer recognizable, and now it seems the government is exempt from fulfilling its obligation to compensate for a taking.

While the court's refusal to hear the case may not be the death knell for eminent domain, the finale might not be too far off.

None of us should be surprised that the Supreme Court and the Army Corps of Engineers are willing to take this type of action for they are not held accountable by the public. This makes it easy for them to view us as mere statistics. But such "bean counting" has permeated through the halls of Congress and the Oval Office. Eminent domain protections have steadily decreased as our population has increased, and those who represent us in Washington have moved farther and farther away.

With a president representing more than 300 million citizens, one representative in the House for every 700,000 citizens and one Senator for every 3 million citizens, none of us should be surprised that we are seen as statistics and that decisions about destroying homes and farms can be reduced to a simple equation.

The local and state officials drawn from the areas along the Mississippi stood up for those they represented in a way national officials have been unwilling to.

The consequences of moving from a federal system to a more centralized system of government have rarely been more clearly seen in our nation's history.

So, the next time the national government has plans to expand a freeway through your house, don't be surprised if you get kicked out without explanation or without proper compensation. Even worse, it might not even be for a freeway or a military base but for some obscure calculation that says your livelihood or home is worth less than someone else's.

If you don't believe me, ask Susette Kelo or the thousands of displaced farmers who formerly lived and made their living along the Mississippi.

Kyle Scott, Ph.D., teaches political science at the University of Houston. His third book, "Federalism," has just been released. He can be reached at

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Paul Allaire May 27, 2011 | 9:24 a.m.

I believe that the government had a right to tear a hole in the levee that it built. However, it does also have an obligation to compensate the people for the damages they incurred and in a fair manner.

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Paul Henry May 28, 2011 | 8:35 a.m.

Your opinions regarding eminent domain are certainly to be respected, but you left out critically important facts in this case. Decades ago, nearly all the land that was flooded due to the levee break was formerly un-farmable land due to frequent natural flooding. The levee systems along the southern Mississippi Valley were constructed by the US Corps of Engineers which made thousands of acres of lands farmable. These lands were turned over to private farmers, but with a very important limitation: NEARLY EVERY property that was flooded came with a restriction imposed by the Government that if the needed ever arose, the levee could be breached and the properties flooded. The farmers, or the predecessors all agreed to these terms when they took ownership of their lands. For decades, the land was used to grow and sell crops and make a profit. It is VERY unfortunate what occurred, but most likely has nothing to do with the 5th Amendment. These owners had already agreed to let this happen. A law suit has been filed on behalf of the owners in Federal Court. Hopefully, if anyone has been wronged, the courts will ensure that just compensation is paid.

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Paul Allaire May 28, 2011 | 9:46 a.m.

Thank you for abridging my ignorance. If you are correct then I obviously need to retract my statement. My layman's view says that at some point in the future the levees should be moved further from the river whenever possible and the land inside of them should be allowed to flood periodically as this is what makes the river soil so suitable to farming. Egypt has been doing this for about five thousand years. One caveat is that you DON'T want to drink the water.

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Ellis Smith May 28, 2011 | 5:51 p.m.

It's also a very good idea not to swim in the Nile River at any point during its travel through Egypt. Who would be foolish enough to do that? Apparently some American and European tourists have been that foolish, and have paid a price for it.

Nasty little critters called schistosoma can enter the swimmer's blood stream and cause a disease called schistosomiasis, which is just as unpleasant as it sounds.

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