Eminent Domain has been equated with a government’s ability to wage war and levy taxes-it is a governmental practice that feels unfair because the private citizenry seems to suffer the most. Although it may seem inherently wrong that the government can simply take a private citizen’s property, the right of eminent domain is legal and used every day within the United States.
Our own United States Supreme Court has even stated that the right of eminent domain “requires no constitutional recognition; it is an attribute of sovereignty.” see Boom Co. v. Patterson, 98 U.S. 403, 406 (1879); see also State v. Core Banks Club Properties, Inc., 167 S.E. 2d 385, 275 N.C. 328 (1969). Indeed, neither the Federal nor North Carolina Constitutions mention that the power of eminent domain has been entrusted to the government. It was always assumed to exist for both the Federal Government and the state government of North Carolina from the inception of both entities to be an inherent power.
The question as to whether eminent domain is legal really rests in the concept of sovereignty. William Blackstone, one of the most beloved legal commentators in western history, simply defined sovereignty as “the power to make laws.” Furthermore, property rights, in the form of laws as we know them today, are given by the government-they are not inherent as some might think. Therefore, it stands to reason that if the government has the power to create, it has the power to abolish. That is why the Constitution of the United States, and the Constitutions of various States, modify the power of eminent domain in order to curb the government’s ability to simply take property.
The Constitution of the United States modifies the power of eminent domain by requiring that the government meet certain requirements before they can simply take someone’s property. The Fifth Amendment, for example, requires that the “taking” of the property be for a “public use” and that “just compensation” be given in exchange for the taking. The founding fathers created a trade-off. The government can take a private citizen’s property, but they must first meet certain criteria before they can simply take the property.