America has always tried to be a society that values its equality before the law. Nevertheless, question of eminent domain is raising serious discussions. Main noticed (2007) that when we allow such takings, we risk becoming a society with two sets of rules – one for those who have political or social or financial power and another for small group within the community who must make an unfair sacrifice so the rest may prosper. When such divisions are maid, the sense of how American society and its basic values is changing. Therefore, it is crucial to analyze the true nature of eminent domain and define whether it is fair.
To start with, it is necessary to define eminent domain. According to Frankel (2009), eminent domain is the power of the sovereign to take property for public use without owners consent – it is a potentially tyrannical power of it is released from the bounds of strict accountability. In other words it is a compulsory acquisition of any kind of property. In fact, the taken property can differ from the railroads to buildings and other facilities. However, is this power of government fair in accordance to the natural rights of American society?
According to the natural law school, people had natural rights antecedent to government (Frankel, 2010). The reason is that people were not able to solve different disputes, before the government was created. But when the government was established through the procedure of social contract, people delegated their power to governmental officials. It is an artificial establishment, because it was created by people for the sake of society.
According to the creator of Liberal theory John Locke, no Body can transfer to another more power than he has himself, and no Body has an absolute Arbitrary Power over himself, or over any other, to destroy his own Life, or take away the Life or Property of another (Frankel, 2009). Moreover, any government is supposed to represent rather than violate rights and interests of society. Representative government begins with the premise that state’s rights against its citizens are no greater than the sum of the rights of the individuals whom it benefits in any given transaction (Esptein, 1987). However, nowadays government can play according to its own rules and implement laws, which are beneficial to its representatives.
That is why, it is essential to more thoroughly explain what "taking" by government is and decide whether it is a fair practice. As it was already specified, eminent domain is a practice, which is exercised by states in order to gain territories. In this situation, government is “taking” some others property. Nevertheless, it is not difficult to tell the difference between the illegitimate and legitimate taking for public use. For example, one of the important protections of the taking clause is the compensation requirement.
The power of the government to take private property is limited by the language that comes at the tail end of the Fifth Amendment: “not shall private property be taken for public …