About thirty years ago, I served on a jury in a case regarding the government’s power of eminent domain. In this case, the government had claimed private land in order to build a freeway. There was little doubt that the government had the right to take the land. The question was how much they had to pay for it.
The Takings Clause of the Fifth Amendment reads, “nor shall private property be taken for public use, without just compensation.” The landowner plaintiffs simply argued that the government had not offered them a fair price. So, as in so many things, I spent five days listening to nicely dressed people talk about money.
I must admit that performing my civic duty was not a primary motivator for me, best illustrated by my failed attempt at humor and the desire to make myself an undesirable juror. During voir dire, the questioning of potential jurors, I informed the court that, if the government came to take my land, I’d be the guy on the front porch with the shotgun.
As it turned out, there were no porches or shotguns in the freeway story, only private land purchased by speculators who hoped to strike it rich by selling their previously rural tracts to Walmart, Home Depot, or Burger King. It would have worked, too, if they had only purchased the parcels a quarter mile to the east or west of the freeway interchange. Instead, these investors learned that the freeway itself would be laid right on top of their investment.
Commercial property near a heavily traveled interchange can become very valuable while property taken by the government to build a freeway does not generate the type of return these folks were looking for.
I think of all this now, because today, adding walls on our Southern border would likely see the government exercising this same power of eminent domain. Indeed, a number of Texas landowners who can see Mexico from their front porches have already received notification that such a thing might occur.
I don’t know about you, but it seems to me that most of those folks who have been chanting “Build the Wall! Build the Wall!” are not too keen about government swamp creatures showing up to claim private property. I could be wrong, of course, and I don’t want to make any judgments I can’t back up. So, let’s just say that this border story is definitely going to be more interesting than the freeway story because, well, I don’t know much more than I’ve seen in the movies, but if a Texan can see Mexico from his front porch, I’ll bet you a ten-gallon hat there is a shotgun nearby.
Not surprisingly, the Supreme Court has weighed in on the appropriate use of eminent domain. In Berman v. Parker, 1954, the high court ruled that taking land for “public use” also meant that land could be taken for “public purpose.” The distinction between “public use” in the Constitution and “public purpose” in the Berman decision seems trivial. Of course, this is probably because the Berman decision never came knocking on your front door; unless you happened to have lived in the Poletown neighborhood of Detroit, Michigan in the 1980s. Over four thousand people were evicted, and hundreds of houses and businesses were bulldozed in order to build a General Motors factory to produce Cadillacs. The neighborhood was clearly taken for the private “use” of GM but also for the “public purpose” of bringing jobs and taxes to the city.
At least they didn’t kick people out of their homes, schools, and churches to build Chevrolets. Now, that would have been hard to take.
By the way, GM announced in November 2018 that it was shutting this factory down. There is no word yet on whether any of the former residents are moving back.
As to my own courtroom experience, the trial ended with closing arguments on Friday morning. The first order of business, as you know from TV, is to select a foreman.
Having nearly completely forgotten my rather unpatriotic attempt to be disqualified from jury service on Monday, I now found myself sitting up a little straighter on Friday as Jury Foreman (capitalized by me).
Charged with determining the fate of about a million tax dollars and now free to talk amongst ourselves, there we were, fully committed to doing our duty.
Nine of us quickly agreed that the numbers offered by the government were fair, and that the freeway real estate speculators had just been unlucky. After a brief discussion through lunch, two of the dissenting three decided to join the growing majority.
The lone holdout was Lolly, who came to the emotionally charged conclusion that the whole affair was no different than a handful of helpless citizens on their front porches armed with shotguns protecting their homes from an oppressive government. Now, where in the world did she get that idea?
Lolly held her ground for most of the afternoon and, at one point, her tears were actually beginning to sway some of the other jurors. In the end, with the weekend looming, the pressure was on to arrive at a verdict. After all, missing a week of work was one thing. Missing Friday Happy Hour was altogether another. (This is my way of saying that some of the more impatient among us did not behave very well when Lolly cried.)
I would like to say that justice prevailed while the reality is that the unanimous verdict was reached only because Lolly was too exhausted to carry on–intimidated as she was by a handful of thirsty fellow citizens.
There is a lesson here somewhere but I’m having a little trouble fleshing it out…something about lawyers, guns, and money or, maybe, justice, bullies, and walls. I’ll get back to you when I figure it out.
