By The Great Courses Staff

For the first time, city officials in a German town took a family dog and sold it on eBay to pay for its owners’ unpaid debts, according to NPR. The city, Ahlen, has claimed the seizure is legal, although the city has drawn criticism. The incident suggests a good time for a refresher look at the takings clause of the U.S. Constitution’s Fifth Amendment and eminent domain laws.

Although the initial seizure of the pug—a one-year-old female named “Edda”—occurred in November, the story gained recent attention when its new owner requested financial restitution from Ahlen for several costly surgeries the dog needs. Edda’s buyer claims that city officials told her the dog was in excellent health and thus misled her about the costs of keeping Edda happy and healthy. She now demands compensation from the city for the dog’s $2,000 medical bill, as well as the initial $850 she paid for Edda on eBay. Complex seizure and repossession cases like this merit a look back on our own takings and eminent domain laws. Some of the most notorious Supreme Court cases regarding takings and eminent domain provide valuable insight into the rule of law in America.

The Benchmark Case of Kelo v. City of New London

In 2000, the city of New London, Connecticut, began an initiative to revitalize its waterfront district to boost the local economy. In order to renovate the area, they had to seize and demolish private property to make way for new businesses. The city hired the New London Development Corporation to handle this endeavor; local residents were given the offer to sell their land to developers or face seizure by the local government under eminent domain law. One homeowner, Suzette Kelo, refused to sell. Kelo took her case to the state court and won, only to have her victory appealed and overturned by the developers in Connecticut Supreme Court. Kelo, in turn, fought the developers in the United States Supreme Court. “The Supreme Court upheld the decision of the Connecticut Supreme Court by a 5-4 margin, concluding that the seizure was for a constitutional ‘public use,’ even though the city intended that the property be sold to a private developer,” said Professor Jeffrey Rosen, Professor of Law at The George Washington University Law School.

Much like the seizure of Edda the pug, the Supreme Court verdict in Kelo v. New London was very poorly received. “In Congress, the House of Representatives passed a resolution declaring its ‘grave disapproval’ of Kelo by a vote of 365 to 33,” Professor Rosen said. In 2006, then-President George W. Bush issued an executive order forbidding the federal government from committing acts of seizure and eminent domain for the express purposes of private parties. However, the executive order struggles to maintain its authority since so many takings of property occur at the local and state levels.

Influences on the Fifth Amendment

The Fifth Amendment of the Constitution of the United States of America includes the clauses regarding federal seizure—specifically regarding due process and takings of property. According to Professor Rosen, the framers of the Constitution took inspiration from the philosopher John Locke, who stated that life, liberty, and property were natural God-given rights of men. However, anyone familiar with the Declaration of Independence will note that Thomas Jefferson amended this to “life, liberty, and the pursuit of happiness.” Why?

“Jefferson seems to have been influenced by the Swiss political theorist Jean-Jacques Burlamaqui, who insisted that property could not be viewed as an unalienable right because it was not a direct gift from God but the product of a human act,” Professor Rosen said. Further, Dutch natural law theorist Hugo Grotius coined the term “eminent domain” and stressed that takings should be balanced against the common good and public interest and that fair compensation for seized property is essential.

Certainly, the laws of the German town of Ahlen differ from the laws of our American government and, therefore, we can’t apply every statute of our Constitution during a comparison look at the case of Edda the pug. However, by looking at property seizure laws, we can use this incident to imagine the process of appellate courts, the application of compensation, and the legal precedents for governments claiming “common good” in takings if such a seizure for debt payment was initiated in a town in the United States.

Professor Jeffrey Rosen, J.D., contributed to this article.
Professor Rosen is a Professor of Law at The George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution. He is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School.