Eminent Domain

Public Attitudes Towards Eminent Domain


Over at the Volokh Conspiracy, George Mason law professor Ilya Somin looks at the results of a new survey on public attitudes towards eminent domain takings done to "benefit the local economy," one of the justifications used in the Supreme Court's notorious 2005 decision in Kelo v. City of New London. As Somin reports, the results indicate that public hostility to eminent domain abuse remains strong:

81% of respondents said that government "should not be able" to engage in economic development takings, while only 16% concluded that it should have the power to do so. There was little disagreement between respondents with different partisan commitments or ideologies. This is almost exactly the same result as in the 2005 surveys. It suggests that public opposition to economic development takings is not a temporary artifact of the Kelo backlash, nor is it the product of question wording that favors opponents.

Read the whole thing here. Somin discusses the limits of anti-Kelo legislation here.


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  1. I have mixed feelings on the issue. Taking of property is allowed by the Constitution, but it is abused. Of course, I wouldn’t be surprised that 81% of the people have a problem with something in the Constitution. I’ve heard it’s just a worthless piece of paper.

    1. The Constitution authorizes taking of private property FOR PUBLIC USE and with just compensation.

      The problem is the vast expansion by the SCOTUS of what “public use” means – very much like the vast expansion of what “commerce among the several states” means.

      1. The case in Kelo was not a “public use” – the proposed use of the property arguably would provide a greater BENEFIT to the “public” than the existing use, but the Constitution does not authorize taking property just because some other use would generate greater tax revenue.

        1. Thus, being abused.

          1. I guess I’m not clear on where your mixed feelings come from. The taking in Kelo was patently unconstitutional, and 81% of those surveyed agreed that the government should not be able to do what 5 out of 9 black-robed, supposed jurists endorsed in Kelo.

            It doesn’t seem to me that those 81% have a problem with what’s in the Constitution; rather, they would prefer the government to abide by it.

            1. “”I guess I’m not clear on where your mixed feelings come from.””

              Whether the government should have the right at all. They’ve abused too far for too long.

            2. Nothing in the Constution says it forbids private organizations, or that it must be for economic improvement, it’s very vauge, it just says it must be for “public use”, and requires “just compensation”.

              The rub becomes the definition of public use, and just compensation.

              1. That’s not vague. Use the common understanding of the actual words

                Public Use: Available for use by the general public. Examples: Roads, bridges, parks.

                Just Compensation: What someone would pay in an unforced, arms-length transaction. Happens every day, it’s called an appraisal.

                1. Just compensation makes ED impossible. What buyer and seller (it takes both) would agree upon in an unforced transaction is clearly more than the government is paying or there wouldnt have been a need for ED at all. If I value my home at $1.2 billion dollars due to some insane sentimental reason on my part, that is exactly what just compensation would be.

                  1. “”Use the common understanding of the actual words””

                    I’d have more faith in that concept if SCOTUS understood what infringe means.

                  2. “”I value my home at $1.2 billion dollars due to some insane sentimental reason on my part, that is exactly what just compensation would be.””

                    I don’t know if I agree with that. Both sides can have a level of compensation that is not just. The seller wants too much, the buyer too little.

                  3. This is exactly right. It also relates to a new accounting rule called “fair market value”. Assets must be booked at fair market value these days.

                    In our company we are holding about $3 billion in assets for which there is currently no market. The assets are just fine, but you can’t sell them right now. Wait around for them to pay out and you’ll earn a cool 12%. Not liquid, but nice, solid assets. But the Feds demand FMV pricing. Well, what is the fair marked value of something for which there is currently no market? Well, the accountants came up with their own formula, including a survey of potential investors who buy at retail – which shows a substantial loss. Our CEO put it best, “that price is a total fiction. The truth is that we would never sell at that price, so you don’t have a market.” But the accounting rules don’t allow for “we wouldn’t sell for less than X”.

                    So, what if there isn’t a market? During the housing collapse nobody in their right mind would buy mortgage backed securities – the uncertainties were just too great. But banks had to value them at market price. Well, left to their own devices they never would have sold – but they had to value them as if they would. Which cost me some money when the feds devalued the holdings at my bank and then forced a selloff to increase liquidity – which forced another downgrade of assets and another forced selloff – to the tune of 11 billion dollars over a weekend. By Monday morning they were liquidated. Thanks guys!

                    Had those securities been allowed to pay off as intended, they certainly would not have lost anywhere near the 80% of their value that my bank gave up under the forced sale. Maybe 10%, maybe nothing.

                    So this fiction of “just compensation” hurts people in other ways than just taking their home for less than they would willingly sell.

                  4. Sometimes the buyer’s hand is forced, or pushed very hard, as well.

        2. some other use would generate greater tax revenue.

          Unfortunately, this is the new definition of “public use.”

      2. And if you had an Ivy League law degree, you’d understand how words can mean something different in the law than they mean in common usage. In fact, they can mean the opposite. I just need to find a way to explain it so people understand.

        1. Silly me! I have a non-ivy-league law degree…

          1. So you’re one of the little people that need smart people to explain how concepts like “shall not infringe” actually mean the opposite. It’s a messaging problem, really. (your sarcasm-meter is on, isn’t it?)

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