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17 U. St. Thomas J.L. & Pub. Pol'y 178 (2023-2024)
Eminent Domain, Property Rights, and the State

handle is hein.journals/tjlpp17 and id is 185 raw text is: EMINENT DOMAIN, PROPERTY RIGHTS, AND THE STATE KEN PENNINGTON* The great Dutch jurist Hugo Grotius coined the term dominium eminens in his De iure belli ac pacis.' In spite of some contemporary criticism of the terminology, Grotius' concept has entered most legal systems. The dictionary of legal terms by John Bouvier, as revised by John Rawle, defined eminent domain as the superior right of property subsisting in sovereignty and the power to take private property for public use.2 In modem law public use has been a tricky concept. In an egregiously decided Supreme Court case, Kelo v. New London in 2005 granted the state the right to confiscate land for the use of a private developer. Forty-five states then passed eminent domain laws to prevent public use ever again being interpreted that way.3 Grotius thought that eminent domain meant that all the public and private property rights ultimately reside in the country, state, or city and not in individuals. Consequently, today private property is a contingent right at best; contingent upon the pleasure of the state. In the ancient world, philosophers thought property rights emerged as human beings began to live in villages, towns, and cities. They generally agreed that in society's most primitive state, people possessed all property in common.4 The Romans were the first to create a jurisprudence to * Kelly-Quinn professor of ecclesiastical and Legal History, emeritus, The Catholic University of America, Washington, D,C. 1 See discussion at the end of this essay. 2 FRANCIS RAWLE, BOUVIER'S LAW DICTIONARY AND CONCISE ENCYCLOPEDIA (8th ed., vol. 2 1914). 3 Conservatives were especially enraged by the decision E.g., Gideon Kanner, Kelo v. New London: Bad Law, Bad Policy, and Bad Judgment, 38 URB. LAw. 201 (2006). See Eric Rutkow, Case Comment, Kelo v. City of New London, 30 HARV. ENV'T. L. REV. 261 (2006) (for a balanced assessment). ' Plato and Aristotle had similar views on property; Plato argued that private property should not exist and that even wives should be held in common, an idea that Gratian incorporated into his Decretum at D.8 d.p.c.1: Unde apud Platonem illa civitas iustissime ordinata traditur in qua quisque proprios nescit affectus. See Stephan Kuttner et al., Gratian and Plato, in CHURCH AND GOVERNMENT IN THE MIDDLE AGES: ESSAYS PRESENTED TO C.R. CHENEY ON HIS 70TH BIRTHDAY, 93 (1976).

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