The Volokh Conspiracy

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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.


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.