Tuesday, June 28, 2005

More on Takings

Conservative pals have been weighing in vigorously on the dissenting side of Kelo. Here are a few additional thoughts.

I agree that property rights are very important to liberty. Our legal traditions are built upon the ideal that citizens are secure within their homes, even from the intrusions of the king himself. However, we have come a long way from that ancient tradition when it comes to economic development. Community interests have long been given significant weight in balancing against the individual interest in particular property.

The public use concept did provide a firmer constraint on the exercise of eminent domain powers. Though I would vigorously object to an effort to build a stadium for a professional sports team, if the elected officials in my jurisdiction were so disposed, this might qualify under the public use category. However, in doing so, they must understand that their taking of property would ultimately benefit the primarily upper income folks who can afford to patronize professional sports teams.

A public purpose concept, as adopted by the majority, does expand government power in the sense that putative economic development interests -- which may be diffused somewhat unevenly throughout the population -- could justify takings in circumstances where the end use is less public than a stadium. However, a redeveloped business park or retail district has the potential for benefits that could well be greater than those of a stadium. The real question of which benefits the public more is one which is ultimately best left to the political branches to decide.

If we are concerned about the political branches abusing their power, and if we believe that electoral responsiveness is an insufficient brake on that power, then perhaps the solution lies not in a constitutional principle that is ultimately subject to the policy judgments of the courts. What really bothers people about eminent domain is the possibility that the state will take property and undercompensate the owner based on a fair market value that does not take into account features of the property that are valueable to the owner. For example, the plaintiff in Kelo who had been born in the house, and who had lived with her husband for 60 years presents a sympathetic case. Her interest in being in the family homestead seems worthy of being valued, over and above whatever market value is on her home.

Here is my modest proposal: let us agree that if the state exercises eminent domain powers, it must pay a premium to do it. Rather than FMV, let us put the value of private property taken by the state at a multiple to FMV. This could be accomplished by the states, and it would provide real protections for property owners, without creating barriers to economic progress. It would compensate citizens for the requirement to sell one's property, instead of doing so volunitarily. It would also create a more effective source for electoral resistance to ill advised economic development efforts by government. If the public is not outraged by politicians using eminent domain powers for dubious purposes -- such as taking over a functional neighborhood based on the hope of making something better -- perhaps the outrage will grow if the taxpayers paid double for it.

Of course, this could raise other problems. Now, instead of using eminent domain to buy out one's political enemies, you might use it to buy out your friends instead. Structural protections don't insure against corruption, but we can at least expose it to the light of day.

Edward A. Morse

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