Property Rights

My Washington Times Article on the Need to Limit Government Power to Take Private Property

The article is Part I of a two-part series.

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Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name.

 

Earlier today, the Washington Times published my article making the case for limiting government power to take private property by using the power of eminent domain. Here is an excerpt:

Despite the deep polarization of American politics right now and the concurrent divides on a wide range of constitutional issues, there is at least one issue on which there is considerable cross-ideological agreement: limiting the power of eminent domain.

Eminent domain is the government's power to take private property from unwilling owners in exchange for "just compensation." Both historically and today, that authority has been subject to severe abuses, disproportionately targeting the poor, racial minorities and others lacking in political influence.

Furthermore, eminent domain is often used by the government for projects that destroy more economic value than they create, including cases in which it is used for projects that may never even get built. Owners of condemned property often receive compensation that doesn't come close to truly offsetting their losses….

For many Americans, the problem of eminent domain abuse first became visible as a result of the Supreme Court's controversial ruling in Kelo v. City of New London in 2005. Although the Fifth Amendment permits the taking of private property only for  "public use," the high court ruled that the transfer of condemned land to private parties for "economic development" is permitted….

[T]hanks to the Kelo backlash, property rights are much better protected than before. Some 20 states did enact meaningful reforms, and several state supreme courts strengthened judicial scrutiny of public use.

Much remains to be done to curb takings that run afoul of constitutional public use limits, however. Many states still have few constraints on eminent domain abuse, including large blue states, such as New York and California. New York's highest court recently upheld a condemnation for a pipeline that may never be built.

Because of the flaws of the Kelo decision and the extensive criticism it has generated, the Supreme Court may well eventually overrule or limit it. But reformers should not sit back and wait for the court to act. To the contrary, history shows that efforts to strengthen protection for constitutional rights work best if they combine litigation with political action.

Part II of my series on this issue will focus on reforms other than limiting the range of purposes for which the government is allowed to condemn property. It will likely be published next week.

My pieces are part of the Times' "To the Republic" series, which features articles on a variety of constitutional issues, by various mostly conservative (and a few libertarian) commentators. It includes contributions by Arizona Supreme Court Justice Clint Bolick (on the power of judicial review), and the Volokh Conspiracy's own Keith Whittington (on impeachment).

Within the last five days I have published opinion articles on constitutional issues in both the conservative Washington Times, and its much more liberal rival, the Washington Post. That just goes to show what a unifying centrist figure I am. Indeed, my status as a centrist moderate has been certified by no less an authority than the New York Times. If you doubt it, that  shows what a dangerous extremist you are!

On a slightly more serious note, it's pretty obvious that I'm not much of a centrist at all, except perhaps under a highly unusual definition of that concept. But I do what I can to reach audiences with a wide range of views. These articles are a part of that effort.

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  1. Actually eminent domain abuse first came to light in the early 1990s as George W Bush and Donald Trump got government on their side in order to employ eminent domain to acquire land for their private sector developments. Bush was successful and got the state government to use eminent domain to acquire land so he could build an obsolete MLB ballpark. Trump was not successful and so he had to get creative building his parking structure. I wonder whatever happened to George W Bush and Donald Trump…I guess I will Google them to see what they ended up doing with their lives?!? 😉

    1. You forgot to mention the eminent domain abuses the city of Chicago used for the Barack Obama Presidential Center.

      1. Were Democrats trying use eminent domain to condemn Justice Souter’s farm?? No. Republicans were the party flipping out over a court case all the while voting for a man whose entire political career was based on his “great accomplishment” of using taxpayer funds and eminent domain to build an obsolete MLB ballpark. And while Republicans were celebrating Bush’s slaughtering babies in Iraq with shock and awe and cheering on Bush shipping manufacturing jobs to China so products at Walmart could be cheaper…they were attacking Souter while Bush actually did what they were attacking Souter for!?!

        1. Slaughtering babies? You’ll need to provide documentation for this.

    2. Poletown in 1981 for a GM plant predates any Bush or Trump eminent domain abuses and was at a much greater scale, and that was after some giant 60’s and 70’s urban renewal debacles. Trying to tie Bush and Trump to when it surfaced as an issue is revisionist history.

      And at least in Bush’s defense public use stadiums have been recognized as worthy public works projects going back well before the Roman Colosseum, at least to the Greek Amphitheaters and probably even predate Minoan bestiality arenas.

      1. Bush turned a $600k investment into $15 million thanks to that stadium made possible by the Texas legislature and city of Arlington…that’s sleazier than anything Hunter Biden did. And in 2003 Neal Bush was getting $2 million from a Chinese semiconductor company while having no background in semiconductors…he apparently was very good with the ladies like Hunter. 😉

        1. My dad worked across from some independent factories taken in the Poletown incident. They carted literal tons of machinery into them, which was then estimated and bought as part of the condemnations, and then, since the city had no use for it, auctioned it off, for pennies on the dollar, mostly to the same people they just bought it from.

          They estimated 30-40 years for the city to make the investment back, by taxes, both direct and via workers (like all large cities, it grows more inefficient and needs income taxes).

          Which would be right about now. I wonder how it went.

          I’m sure there’s an interesting news article about it to be written. Government sure won’t put up such measurements of its own arguments, without kicking and screaming.

          Do you hear that, Detroit journalists? How did the net tax benefit turn out?

          1. Journalists do not do opposition research on blacks, nor on Democrats. All journalism is unethical opposition research. Only C-Span is ethical in presenting both sides equally.

        2. “that’s sleazier than anything Hunter Biden did. ”

          I think you’re probably in denial about how sleazy Hunter Biden is.

  2. “Within the last five days I have published opinion articles on constitutional issues in both the conservative Washington Times, and its much more liberal rival”
    -And you’re modest too!

    “That just goes to show what a unifying centrist figure I am.”
    -Wow…

    “Indeed, my status as a centrist moderate has been certified by no less an authority than the New York Times.”
    -I see….

    ” it’s pretty obvious that I’m not much of a centrist at all, except perhaps under a highly unusual definition of that concept”
    -Well, yes, it is an odd definition the NYT uses…

    1. “It’s a joke, son. A funny.”

      –Foghorn Leghorn

    2. from Wikipedia:

      Slate is a progressive online magazine that covers current affairs, politics, and culture in the United States. It is known, and sometimes criticized, for…contrarian views, giving rise to the term “Slate Pitches”. It has a generally left-wing editorial stance.

      Prof. Somin is “centrist” like Slate is centrist. (His posts often remind me of “Slate Pitches.”)

  3. I have to agree that you are a unifying figure between the left and right; you won’t go right enough to satisfy the right, and you won’t go left enough for the progressives. So both sides will hate you and your only remaining refuge will be as an anonymous community college adjunct instructor in a purple suburb of a purple state.

  4. ho ho, I really never forget this article I would like to respond to this I purple state like this. whatsapp groups

  5. Force the government to pay compensation for all their regulatory takings, beginning with the counter-productive lockdowns, and we will get less takings! More here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3567003

  6. Emonent domain is yet another area of obvious, utter, and extreme lawyer stupidity. The cost should be the future value, not the past value. That should include chattel like transplant organs. The assessment shpuld be done by independent people paid by both sides. Defrauding should be deterred by triple damages from thr personal assets of officials.

    Thr real Kazinski persuaded me about the validity of Kelo. When you take for a government project like a road, who uses the road? For profit, private trucking firms. How does that differ from Kelo, except for title? The higher tax revenue of private development is a public good.

    This is mot hard unless you are a lawyer. Then, it’s a whole hysteric drama, as in the above article. Why is this toxic profession so stupid? For the rent, of course. It’s a criminal enterprise.

    1. I recall several decades green waste management requirements (note there’s always some hook for government command and control) were causing new business to spring up. Some politician wondered why Republicans, the party of business, were against this. It was an investment opportunity!

    2. Thr real Kazinski persuaded me about the validity of Kelo. When you take for a government project like a road, who uses the road? For profit, private trucking firms. How does that differ from Kelo,

      The road isn’t set aside for for-profit, private trucking firms. The general public uses it. Whereas the property in New London was being given to private interests to the exclusion of the public.

      except for title?

      “Except for title” is like “aside from that, Mrs. Lincoln…”

      The higher tax revenue of private development is a public good.

      Higher tax revenue sounds more like a public harm. But the constitution doesn’t speak of public good or public benefit, but public use.

  7. Are the CDC regulations preventing evictions a form of taking?

    1. Assuming they are a necessity, yes. But there should be compensation, if The People, in their wisdom, through their elected officials, think it so.

      Oh, wait. There is a big push to do exactly that via government reimbursement for unpaid rents.

      Maybe those who could pay, but stopped, had the right idea all along.

    2. An aggregate claim should be filed against the CDC for all unpaid rents, and for the rent increases that happened that year.

      1. If a landlord was foreclosed and lost his property, get the value from the CDC.

  8. “Furthermore, eminent domain is often used by the government for projects that destroy more economic value than they create. . . . ”

    But isn’t that the primary purpose of eminent domain; to build something for public use that does not generate economic value (e.g. city park, fire house, etc.)?

    Kelo is the outlier (and is/was plainly wrong on many levels), but if we stick to the original purpose of eminent domain, then it’s not intended to create economic value.

    1. Depends on how far back you go, I suppose. I think it started out as mostly for things that the government did that had obvious utility, like military facilities or roads, where you needed a specific plot of land, or more than could be feasibly assembled from willing sellers.

      While a firehouse or military base doesn’t create economic value, as such, they are intended to preserve such value.

      The real distinction that Kelo violated, with the Supreme court damnably signing off on it, was between public “use”, (The actual constitutional standard.) and public “benefit”. Normally, if land were obtained by eminent domain and handed off to a private entity, that entity would be running a utility that the public actually used, such as a pipeline. Just an ordinary business, on the theory that business in general benefit the public? That was an innovation, and not a welcome one.

  9. Is there a study of all eminent domain takings, and their economic outcomes? It the number is too big, a random selection would suffice. Ilya’s conclusory remark, they destroy value, should be researched.

    1. I have no doubt Ilya’s IQ appraoches 200, but his legal education made him an idiot.

  10. The Washington Post is owned by one of the most successful entrepreneurs in American history – like him or not, Jeff Bezos is astoundingly successful at what he does.

    The Washington Times is owned by a once moderately successful religious cult that has seen its membership dwindle after its leader (who claimed to be the second coming of Jesus Christ) died.

    That one is “liberal” and the other “conservative” seems to indicate how meaningless those terms have become. Kudos to Ilya for thinking for himself.

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