Reassembling the Right: Eminent Domain Case Tests Our Understanding of Federalism

The governments that were established to protect your rights now claim essentially unlimited authority to redefine your rights to their own convenience. "Conserving" that system is not conservatism.

A New Jersey township’s plan to use eminent domain to seize a 175-year-old family farm has caught the Trump administration’s attention. It is an important case with critical implications about the purpose and conduct of government.

AgWeb reports:

For three decades, Andy Henry has declined $20-30 million offers for his 21-acre, 175-year-old farm. Ironically, local government is using his perseverance to take the entire property via eminent domain and replace pasture with affordable housing.

Grass for concrete? Legacy surrendered? No deal, Henry says. Period. Full stop.

On South River Road, in Middlesex County, N.J., warehouses and industrial buildings have replaced the once abundant farms of yesteryear—except a lone holdout.

“My family sacrificed on this land for 175 years,” Henry adds. “All the other farms disappeared. We did not. We will not.”

New Jersey law requires the local community to build 265 “affordable housing units” in the next 10 years. Cranbury Township decided to take Henry’s property, which is now surrounded by warehouses and industrial operations but still functions as a working farm:

On April 24, 2025, Henry’s mailbox clinked with an official letter of notice from the Committee, tagging his farm as an affordable housing site. “It was incredibly stunning,” he says. “The letter said if I didn’t agree on a price—they’d take my land by eminent domain.”

On June 9, the township sent property owner Andy Henry a revised demand stating it would leave him the farmhouse and nine acres of ranch land. Henry intends to contest the new offer as well, AgWeb reports.

With the state of New Jersey requiring Cranbury Township to build taxpayer-subsidized housing, the township government has decided to grab a family farm. That makes two levels of government aligned against the property owner.

There is a third level of government involved, of course. This type of property confiscation for purposes other than direct public goods such roads, rights of way (and only absolutely necessary ones, not giveaways to businesses), government buildings, parks, national defense facilities, and the like is the law of the land courtesy of the U.S. Supreme Court.

The Fifth Amendment to the U.S. Constitution explicitly directs that “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” At that time, common law and standard English language usage defined public use as items such as those noted above: infrastructure and properties necessary for the delivery of government services.

The Supreme Court gave Congress wide latitude in deciding what is a public use, as Cornell University’s Legal Information Institute (LLI) notes:

United States v. Gettysburg Electric Railroad Company (1896): The Supreme Court established lawfulness of condemnation of nearly any piece of land, with compensation. Justice Peckham stated that when it came to public use, “No narrow view of the character of this proposed use should be taken. Its national character and importance, we think, are plain.”

Berman v. Parker (1954) : In this case, a department store owner did not want the government to take his land to redevelop a blighted housing district. The Supreme Court unanimously held, by delivery of Justice Douglas, that because the Fifth Amendment does not specify what land must be used for besides “public use”, Congress has the power to decide what the use might be. The majority also stated, concerning limits on the amount of land that could be condemned, that “once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.”

In 2005, the Court explicitly expanded that same latitude to the states and thereby to local governments. In Kelo v. New London, a 5-4 majority held that the city of New London, Connecticut had the constitutional authority to take a person’s property and turn it over to a private company for economic development. The LLI observes:

[The Court] held that redistributing the land as part of a detailed economic plan fulfilled the public use requirement, according to Conn. Gen. Stat. § 8-816 , because the increase in economic welfare that would result from the development would improve the public welfare of the citizens of Connecticut. To arrive at its conclusion, the Court used a more expansive definition of “public use” and did not confine the concept to literal usage by the public, but viewed it broadly to include public benefit or general welfare.

That decision gave all three levels of government in the United States the authorization to take pretty much anyone’s property for any reason. The governments that were established to protect your rights now claim essentially unlimited authority to redefine your rights to their own convenience.

That may be about to change, even though Donald Trump notoriously agreed with the Kelo decision back when it was to his advantage as a property developer. Trump’s Agriculture Secretary, Brook Rollins, took to social media to state that her department was investigating the New Jersey land grab, AgWeb reports:

On June 17, Rollins caught wind of the potential loss of Henry’s farm via an X post from @wakeupnj. On her personal X account, @BrookeLRollins, she responded: We hear you, and I am looking into this situation immediately. We must protect our family farms at all costs. Standby.

Here is Rollins’s official post:

Source: X

Conservatives may be tempted to be conservative in this dispute, arguing that Rollins is undermining federalism by intervening in a local matter. That argument misses the point. The purpose of federalism is to ensure that different levels of government are available to place in the most efficient hands the performance of the one essential job of government, the responsibility for which they all share: ensuring the protection of individuals’ rights. Federalism is a means to the end of good government and the protection of liberty, not an end in itself.

Opposition to big government does not mean that one should reflexively oppose all government action, as this story indicates. The U.S. government has become so massive and intrusive, having shown until just this year an increasingly open and aggressive ambition for omnipotence, that the only way to defeat it is through action by the federal government itself.

That action, of course, must be a deliberate program of decentralization of governance from Washington, D.C. to the states and the people.

This process requires a recognition that the one legitimate purpose of government is to protect people’s freedoms of conscience and of action—the concept of negative liberty. In this view, which is common among U.S. conservatives and the American right in general, government’s main activity is to protect people from one another: from force, fraud, and the deliberate, negligent, or unknowing imposition of externalities (harms caused to others by productive activities).

We seem often to forget, however, that the government is among those people from whom other people need protection. In fact, government is regularly the most powerful danger to the people. Sec. Rollins and the Trump administration will be doing the right thing if they intervene to stop this assault against the Henrys’ rights.