July 26, 2015


They Can Take It If They Want It : review of THE GRASPING HAND by Ilya Somin   (EDWARD GLAESER, July 24, 2015, WSJ)

[T]he U.S. Supreme Court supported the New London taking by a 5-4 margin. And to the more than 80% of Americans who disagreed--including both Rush Limbaugh and Ralph Nader--the court appeared to be radically redefining property rights. According to Mr. Somin, this view is wrongheaded.

The court had already given city planners extremely broad powers to take non-blighted land via eminent domain--in 1954, not 2005. (The case was Berman v. Parker.) In 1984, the justices unanimously reaffirmed (in Hawaii Housing Authority v. Midkiff), their deference to local government, and confirmed that eminent domain could transfer land from one private owner to another private owner. Indeed, Mr. Somin concludes, Kelo "represented progress relative to the Court's previous ultradeferential public use jurisprudence."

Eminent domain cases all look back to the Fifth Amendment, which states: "nor shall private property be taken for public use, without just compensation." The Due Process clause of the 14th Amendment extended this right to takings by state governments. Mr. Somin provides new evidence supporting the view that 19th-century courts often held a narrow definition of "public use" that would have excluded economic development. Hence an originalist approach in Kelo could have led the Supreme Court to reject the New London taking. Yet a sudden judicial shift restricting eminent domain would have also been a radical break with recent precedent--and a power grab, moving authority from local governments to federal courts.

Mr. Somin doesn't think we can trust the political process to protect private property, concluding that the majority of new state laws "provide little or no protection for property owners against economic development takings." But I don't think we can the trust courts entirely, either. For almost a century, courts have smiled on the overregulation of land use, which is a far more insidious threat to private property than eminent domain. A world of judicial empowerment over eminent domain would mean that judges could allow the takings that they like and ban the rest.

If property owners like Susette Kelo are to be protected, we need both judicial and legislative action. The simplest reform--a blanket ban on eminent domain--is off the table: No U.S. government will ever abjure the power to take land, which is clearly accepted in the Bill of Rights. But there are many more modest limitations that could be instituted.

Legislatures could require heightened scrutiny of costs and benefits and higher compensation rules: Some owners might still lose from a taking, but a market-price-plus-50% rule for compensation would do much to alleviate their pain.

Except that, as Mr. Glaeser has just noted, the Constitutional standard is just compensation, not just and a half.

Posted by at July 26, 2015 6:33 AM

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