Eminent Domain and Urban Change:
Portland, Maine

Making Sense of Ambiguous Language

    The use of eminent domain is a contentious issue due in large part to the vagueness of the language in which the clause is written in the Fifth Amendment of the Constitution.  When the meaning of the term “eminent domain” is explained, it often goes something like this:  If a town, city, or state wants to build something like a road, but the proposed road goes through someone’s property, the government can take the property as long as it compensates the landowner.  The Fifth Amendment of the United States Constitution states that “property shall not be taken for public use without just compensation” and that “no person shall be deprived of property without due process of law” (United States Constitution).  But what defines “public use?”  This question is considered every time eminent domain is used.

As Epstein (1985, p 20) has pointed out, the Fifth Amendment is written with “sentences of great power, but equally great abstraction.”  The words “public use” have been used in order to justify road construction, placement of power lines, and even wildlife preservation.  But do all of these purposes fit the definition of use?  The definition of public use has many times been considered synonymous with public benefit or greater good.  People have fought the use of eminent domain on the grounds that the taking will not be for public use or benefit the greatest number of people; however, these cases are difficult to win.  Most eminent domain cases are fought in court over the “just compensation” part of the clause (Katsiaficas & Vogel, 1995).

           There is a phrase referring to geometry that says that a square is a rectangle, but a rectangle is not a square.  The same concept can be applied to the idea of public use and greater good.  That is to say, public use is always for the greater good, but the greater good does not always mean something is for public use.  So how has Portland, Maine used eminent domain?  Has the city’s use been justified and for public use, and have they been justified in extending the meaning of “use” to encompass public benefit?