Abstract
In the United States and China alike, eminent domain proceedings have uprooted and displaced millions of citizens over the years as to facilitate and hasten economic development. Both nations’ constitutions share similar texts regarding the limitations of eminent domain proceedings – the scope of which has historically been broadened and manipulated as to ensure the quick redevelopment of requisitioned land for economic development purposes. Specifically, both constitutions require that the eminent domain takings be for “public purpose/use” and that “compensation” in some form or another be provided to those uprooted. Historically, both nations have applied a broad reading to “public purpose” and “public use,” thereby precipitating a pattern of economic development takings, which, in China have heavily burdened the rural farming class. This paper will not only analyze both nations’ interpretations of “public use” and “public purpose” side-by-side, but also how “compensation,” and “just compensation” standards are interpreted and enforced by each nation’s government agents and judiciary. Additionally, this article will evaluate the due process and constitutional enforcement mechanisms that the United States and China each have in place to address issues arising from inequitable eminent domain proceedings.

I. Introduction

Leading up to the 2008 Beijing Olympics, the Chinese Government forcibly displaced approximately 1.25 million people from their homes in order to facilitate construction. Over the past forty years, the Chinese government has evicted approximately forty million rural farmers from their homes. Most of these evictions emanated from government requisitions of privately owned rural land for economic development projects. These victimized landowners, often farmers with little to no political or legal recourse, are pushed into unfamiliar housings markets with largely inadequate compensation from the government to show for their troubles. According to Cheng Jie, Associate Professor of Law at Tsinghua University, both individuals and collective organizations in rural areas often “fail to resist expropriation requests from the State.”

Chinese “requisitions,” the Chinese form of eminent domain, are constitutionally permitted as necessary for the “public interest,” and if “compensation” is provided. Chinese property laws, however, have only just recently explicitly defined what constitutes “public interest,” or “compensation.” Historically, no such definition was ever provided for by the Chinese government; however, the 2019 Amendment of the Land Administration Law of the People’s Republic of China spells out rather detailed guidelines, guaranteeing farmers and those displaced greater financial security. But, whether Chinese officials will heed such instructions remains to be seen, considering that, historically, constitutional restraints on government eminent domain (i.e. requisition) powers rarely, if ever, precluded local Chinese governments from requisitioning rural land for economic development projects, with landowners denied any semblance of compensation as constitutionally mandated.

Similarly, in the United States, the government has the constitutional authority to exercise eminent domain power if two conditions are met: (1) if the taking is for “public use,” and (2) if “just compensation” is provided. In its entirety, Article 5 of the United States Constitution, commonly referred to as the “Takings Clause,” mandates that “private property [shall not] be taken for public use, without just compensation.” While the United States judiciary, Congress, and state legislatures consistently construe “just compensation” to mean the market value of the property as determined by a third-party appraisal, the definition and scope of “public use” has sparked enormous on-going public and political discourse. The United States Supreme Court refuses to provide an official definition. Instead, the Court has historically deferred judgment on the matter to the legislature, using the rational basis review test – thereby cultivating growing unrest and confusion between the public and states.

Thus, although the United States and Chinese Constitutions share similar language and restrictions on eminent domain powers, both nations’ practices have been subject to heightened public backlash and criticism in recent years – largely resulting from the perceived government misconstruction of “public use” and “public interest.” The Chinese populace, additionally, faces issues arising from a lack of procedural safeguards in place; most victims of eminent domain are often violently displaced, with unjust compensation, and insufficient political or legal redress. In this context, citizens of both nations, increasingly susceptible to economic development takings, seek immediate reform.

Consequently, this paper will address how both the United States and China (with similar constitutional restraints on eminent domain proceedings) have evolved towards a model in which economic development takings are increasingly common and routine, in practice. In Section II, this paper will survey how the “public use” and “public interest” standards, in the U.S. and China, respectively, have espoused a broader reading and application in both systems – pinpointing the societal and cultural influences guiding these changes. Next, in understanding the public policy and enforcement mechanisms that both nations have in place to address constitutional restraints on eminent domain powers, Section III will address the following issues: (1) how “compensation,” and “just compensation” standards are interpreted and enforced by each nation’s government agents and judiciary. Next, in Sections IV, V, and VI, this paper will evaluate the due process and constitutional enforcement mechanisms that the United States and China each have in place to address issues arising from inequitable eminent domain proceedings. Lastly, in Section VII, this paper will attempt to weigh the fairness and efficacy of eminent domain laws and applications in both the U.S. and China – in doing so, providing recommendations on how to improve both systems going forward.