New at Reason

Julian Sanchez | November 3, 2005

Tim Cavanaugh talks to attorney Scott Bullock about snatching a public opinion victory from the jaws of Supreme Court defeat on eminent domain.

Comments

|11.3.05 @ 8:32AM|#

Few events in the last 25 years have prompted a national uproar over a specifically libertarian issue.

That sentence is really sad. The right to keep property you own is specifically a libertarian issue.

|11.3.05 @ 9:21AM|#

"...the Court declared that the Connecticut city and its quasi-governmental development corporation could take the well-maintained homes and businesses of people in the city�s Fort Trumbull neighborhood (including a grandmother who has lived in the same house since her birth in 1918) to make room for an expansion by pharmaceutical giant Pfizer."

No, it didn't. The Pfizer plant is not being built in the Fort Trumbull neighborhood, and is not located on land taken as a result of this case.

Do you not know this, or are you just sexing up the story by presenting it as Big, Bad Pharma vs. the plucky little guy?

Stephen Macklin|11.3.05 @ 9:21AM|#

The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

Sign the Petition

|11.3.05 @ 9:26AM|#

don't forget nissan.com

|11.3.05 @ 9:35AM|#

"There�s plenty of land in Fort Trumbull to do significant development while keeping these people in their homes."

Yes, but if there are small, privately-owned parcels scattered in and among the development parcels, the developers might have to build at a human scale, rather than constructing supersized buildings and making greater profits from economies of scale. Heck, they might not be able to abandon little local streets to create superblocks! And what a shame that would be.

This whole thing is so unnecessary. The city is insisting on the right to wipe out, not revitalize, a solid, quality neighborhood, just because it's more profitable to do so, and to rebuild in an inferior manner to boot.

|11.3.05 @ 9:43AM|#

"Bullock: It�s very different from something like a railroad. A railroad typically follows a very narrow strip of land."

I don't understand why Bullock keeps making this stupid argument. It's ok to take narrow parcels, but not wide ones? What if we turn the map the other way?

"Railroads and utilities are what are known in the law as common carriers. So even though they might be privately owned, they�re really the equivalent of public bodies because everybody, the public, has an equal right to them. Everybody has a right to the utility line."

True as far as it goes, but the closer analogy is not passenger rail lines. A better comparison would be with mill ponds, private roads, or freight railroads built, for example, to transport ore from a private mine to a depot or processing facility.

"And they�re very tightly controlled by public officials, so they�re really the equivalent of public bodies; that�s why the court upheld them." Anyone here want to claim that the construction and sale of housing or the operation of a restaurant on this land won't be "very tightly controlled by public officials?" Fair Housing Act, OSHA, building codes, ADA, local zoning...

|11.3.05 @ 10:19AM|#

interestingly enough, I agree with Joe's critique.

The whole idea of railroads as a public use is the descendant of American Whig and subsequently Republican policy of the American Plan. After a brief flirtation in the early 1830s, many americans realized the plan was crap, but, surprise, surprise, the Republicans were captured (if not conceived from the outset) by big northern business to create a public till from which the piggies could feast. Yet another outstanding legacy we can all admire Lincoln for.

There was one northern railroad line built entirely privately - no eminent domain was needed. So surrendering that point, as Bullock does, may be good legal strategy (the legal precedent is so well established now that you would be characterized a radical to challenge it), but it is poor legal reasoning.

|11.3.05 @ 10:54AM|#

In my experience, the outrage over this case doesn't stem from the "public use" definition, but from the fact that the government is taking people's homes, their primary residences.

In New Hampshire, one aspect of the public response has been closer scrutiny of the public agency in charge of school building projects. Apparently, they have been taking more homes than they need, or taking homes for projects that don't end up getting built. People are angry, but a public school is a classic public use that would even pass Stephen Macklin's test.

If the government took eight owner-occupied houses to build a bridge abuttment, more people would object than if it took two acres of self-storage lockers, owned by an out of state corporation, so developers could build a mall.

Rich Ard|11.3.05 @ 10:57AM|#

(threadjack)

joe, maybe you have some insight on this - I examine land records, and once in a while we issue title commitments for excess land from takings for highway rights of way and ramps. These properties usually sell for far more than the state paid as 'just compensation' - have you run into any situations in which the prior landowner raises a stink?

|11.3.05 @ 11:14AM|#

Rich,

I've never been involved in such a project.

Of course, the extra value is the result of the investment the government made in its property (building the off ramp).

Rich Ard|11.3.05 @ 11:42AM|#

I imagine that in some cases that's true, but certainly not every property increases in value by being located next to a limited-access highway; and I've seen the sales price jump by a factor of five (from the compensation given for the initial parcel to the consideration for the excess parcel).

|11.3.05 @ 10:25PM|#

"The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation."

That wording seems funky to me. I don't know the proper legalese, but "without" leaves me with the wrong impression. I would suggest something along the lines of "...for other than a public use, and only then with just compensation."

Dave W.|11.4.05 @ 1:57PM|#

If they had made them use the peace dividend to cut taxes by 10%, then that would have been the biggest libertarian issue of the last 25 years. We, fellow libs, dropped the ball and public debate has been reframed in ways that make us look pathetic, bearing an almost-non-issue like eminent domain as our standard.

|11.4.05 @ 2:06PM|#

I gotta say, Dave W, that the outrage surrounding Kelo is the biggest libertarian movement I've ever seen. Ordinary people care about their homes being taken by the government, a lot more than they care about junkies going to prison, rich people having higher taxes than poor people, ad hoc mudslinging groups being kept off the air before elections, the evil of paying into Social Security, or pretty much every other topic (other than opposition to the war, which is not really a libertarian cause) than I've seen y'all obsessing over.

Frankly, I think this is your big chance. It will be interesting to see what miniscule deviation in thought causes you people to drop the ball and engage in a civil war.

Dave W.|11.4.05 @ 3:13PM|#

other than opposition to the war, which is not really a libertarian cause

Yeah, this is another issue the libertarians missed (although I would qualify as "opposition to unneccessary war"). We'll always have Kelo. Frankly, I would rather get a substantial tax cut than face a small threat that they will take my home. Even more frankly, I would rather have a substantial tax cut, even if it somehow meant my home was certain to be taken (albeit with compensation). Now that is saying sumpin!

Kelo's a nice issue, but . . .

|11.5.05 @ 4:43PM|#

thoreau,

Oh yes, joe never flames anyone. Interesting the company you keep thoreau. That sound thoreau, is me laughing at you. You are such a fool.

Ha ha ha ha.

joe,

Thankyou for your long and very fallacious argument from popularity.

...a lot more than they care about junkies going to prison...

Wow. Nice. Well, we see where your loyalties lie joe. Not with poor people certainly.

...rich people having higher taxes than poor people...

You must be consulting the libertarian in your head.

...ad hoc mudslinging groups being kept off the air before elections...

Ah yes, tell us how you love free speech some more. Yes, taking someone off the air. Yes, that's what we need to do. Take those opposing voices off the air, then everything will be "safe" and "clean." Yes.

...the evil of paying into Social Security...

Its more of the stupidity of paying into it than anything. Unfunded pension programs are inherently unworkable. Which is why every unfunded government pension program on the planet is undergoing the same crisis for the same reasons.