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“Public Use” Means Public Use

“Nor shall private property be taken for public use, without just compensation.”  U.S. Constitution, Amendment V

Justice Oliver Wendell Holmes coined many pithy aphorisms, including the frequently-cited cliché that “hard cases make bad law.”  Sometimes this may be true, but in reality “bad law” has many sources, often sloppy or unprincipled reasoning by the judge(s) in question.  It is particularly infuriating when easy cases make bad law, highlighting the potential for error (or, worse, dishonesty) in judicial decision-making.  When that happens, legal scholars are supposed to weigh in and point out where the errant judges have strayed from the doctrinal (and/or historical) path.  George Mason University law school professor Ilya Somin does just that in his fine book The Grasping Hand (2015), a thorough exploration of Kelo v. City of New London (2005) and the power of eminent domain generally.

In Kelo, following earlier decisions in Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), the U.S. Supreme Court held by a 5-4 vote that the words “public use” in the Takings Clause of the Fifth Amendment does not restrict the taking of private property to government use; it is sufficient that the condemnation have a “public purpose,” a loose concept that encompasses virtually any use deemed to have a potential public benefit.  Thus, state and local governments can—and do—wield the awesome power of eminent domain to compel the transfer of property from one private owner to another, in the name of “urban renewal,” “redevelopment,” and similar euphemisms for rent-seeking by powerful special interest groups. The current conception of “public use” would, proponents concede, permit the condemnation of a Motel 6 owned by A so the property could be used by B to build a Ritz-Carlton that generated more tax revenue.

A growing consensus has developed that Kelo was wrongly decided.  Indeed, the Kelo decision has come to be regarded as an archetypal example of bad law.  Somin analyzes Kelo from many different perspectives—historical, economic, philosophical, and political—but the most valuable aspect of The Grasping Hand is his inquiry into the original meaning of the term “public use.”  He persuasively argues that the U.S. Supreme Court flat-out misconstrued one of the most important provisions of the Constitution, leaving property owners at the mercy of state and local governments. In the process, the Court produced one of the most controversial decisions in modern times.

Although Kelo was politically unpopular—even reviled—Somin notes that “a substantial majority of constitutional law scholars continue to believe that Kelo was rightly decided.”  In The Grasping Hand, Somin aims to prove them wrong.  He does what no other scholar had previously done, at least in a book-length treatment—pore over all the state court rulings interpreting the term “public use” circa 1868 when the provisions of the Fifth Amendment became applicable to the states pursuant to the adoption of the 14th Amendment.   The preponderance of those rulings, both at the time of the Founding and in 1868, supports what Somin refers to as the “narrow view” of public use.  He concludes that most courts permitted takings of property only for transfer to the government or to a private entity that “has a legal obligation to allow the general public to use the land in question, as in the case of a public utility” or common carrier.  Thus, the taking of private homes, as in Kelo, to assemble a parcel for commercial or industrial purposes, would have been impermissible. For “originalists” like Somin, the historical prevalence of the “narrow view” has important implications for judicial interpretation: It is powerful evidence of the original meaning of the Fifth and Fourteenth Amendments, which judges should honor in interpreting the Takings Clause.  Courts have taken a much more deferential approach to “public use” since the dawn of the 20th century, but it wasn’t always so.

Property rights were sacred to the Founding Fathers. Protecting property rights was considered to be an essential function of government and an indispensable aspect of liberty. Early jurists viewed eminent domain as a “despotic power” (Vanhorne’s Lessee v. Dorrance (1795)) and expressed their belief that a compelled transfer of property from one private party to another “is against all reason and justice.”  Calder v. Bull (1789). Challenging prevailing assumptions, Somin argues that the existence of early laws permitting condemnation of property for privately-owned mills and roads is consistent with a “narrow view” because those facilities were generally open to the public—similar to modern-day public utilities.  Litigation over “public use” increased in the 19th century; even prior to adoption of the 14th Amendment, almost every state had a “public use” clause in its state constitution.

Somin’s main contribution to the scholarly literature lies in his detailed review of state court decisions during this era, leading him to conclude (contra Lawrence Berger) that by the late 1870’s “a substantial majority [of state supreme courts] endorsed the narrow view of public use,” as did the few U.S. Supreme Court decisions and leading legal treatises.  The tide began to turn in the early 20th century, however, with the advent of the Progressive Era, “when state courts gradually began to transition from the narrow view of public use to the broad one” currently in vogue. A major factor in this transformation was the use of eminent domain to condemn “blighted” urban areas for transfer to private developers, leading to the unfortunate landmark case Berman v. Parker (authored by Justice William O. Douglas).  Kelo extended the unanimous holding of Berman, approving the taking of private property, even in the absence of urban blight, for the sole purpose of economic development.  After Kelo, almost any conceivable public “benefit” will suffice as a “public use.”  The once-feared “despotic power” is now constitutionally untethered.

Much of the prior scholarship in the area of “public use,” and the Kelo decision itself, erroneously conflates the Supreme Court’s pre-incorporation condemnation precedents decided under the Due Process Clause of the 14th Amendment (which were often deferential to state governments) with cases applying the Takings Clause itself. Justice John Paul Stevens, the author of Kelo, subsequently acknowledged this error, which he termed “embarrassing.”  Somin eviscerates Kelo from every angle, but especially on the original meaning of “public use.”  Somin concludes that “there is a strong originalist case for a less deferential judicial approach to public issues,” and that the Kelo decision “was a major error that the Court should eventually overrule.” In Somin’s telling, Kelo was an easy case that made bad law.

If the goal of The Grasping Hand was to retrieve the original meaning of “public use” from scholarly and jurisprudential oblivion, Somin has succeeded.  Will the Court recognize its error and eventually overrule Kelo?  One can only hope.

Reader Discussion

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on December 30, 2015 at 10:33:10 am

The current conception of “public use” would, proponents concede, permit the condemnation of a Motel 6 owned by A so the property could be used by B to build a Ritz-Carlton that generated more tax revenue.

* * *

Somin argues that the existence of early laws permitting condemnation of property for privately-owned mills and roads is consistent with a “narrow view” because those facilities were generally open to the public….

A privately-owned mill is “open to the public” in some manner that the Ritz-Carlton is not? I’m not seeing the distinction here.

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nobody.really
on December 30, 2015 at 10:45:46 am

In the mill example, farmland is condemned to allow flooding for a dam necessary to operate a mill--at the time an essential element of rural life--available for use by the general public. The "public use" is the addition of a mill. In the Motel 6 example, overnight lodging already exists. The only reason to "upgrade" it to a Ritz-Carlton is to increase tax revenues. This is not a "public use" in the same sense of creating commonly-used infrastructure.

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Mark Pulliam
on December 30, 2015 at 11:39:16 am

Mark:

"...at the time an essential element of rural life–available for use by the general public."

Is that because, local farmers, citizens, etc. would actually bring their product TO the mill for grinding unlike today where large agribusiness concerns take care of this. In this sense, the mills of old were, in fact, "public" with a general and widespread benefit.

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gabe
on December 30, 2015 at 12:01:10 pm

Perhaps a look at those cases, and an understanding of provisions for and uses of water power (similar to electric power and communications of our time) would be enlightening.

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R Richard Schweitzer
on December 30, 2015 at 12:08:28 pm

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean - neither more nor less.'

Lewis Carroll

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R Richard Schweitzer
on December 30, 2015 at 12:20:32 pm

On eminent domain, economic development, and taxation:

City with 5 plots need to raise $10 to cover public expenses. Each plot, if used to its most lucrative potential, could earn $20. So if the city taxes each plot at 10% of its potential earnings, the city raises its $10.

What if Owner A doesn’t want to develop her property, and would rather leave it as a wilderness because it gives her psychic benefits equivalent to $30? If we’re taxing at 10% of potential earnings, no problem; she pays the same tax, regardless of how much she earns. And if she’s actually getting psychic benefits of $30, she’s effectively paying a LOWER tax than everyone else.

But what if she lacks liquid assets with which to pay the tax? Or what if she contests the estimated potential earnings? How should we determine this value? And who should bear the cost of generating such estimates?

Moreover, what if the earnings for Owners B, C, D, and E are all diminished by A’s choice no to develop her property? Should the city continue to tax B, C, D, and E on their potential earnings, even though they lack any legal capacity to achieve that potential? Or should the diminished earnings potential for B, C, D, and E be added to the imputed revenue of A’s lot? Or should B, C, D, and E pay not only their share of the tax burden, but also A’s share, because A unilaterally elected not to develop her property?

In an ideal libertarian world, these issues never arise because we all live in our spheres of autonomy, and nothing I do with my property ever affects you and vice versa. But none of us actually live there.

Given these complexities, cities generally do not impose a taxing scheme based on potential earnings, other than the potential value of the property when sold. And cities condemn property and convert it to more lucrative uses rather than impute its revenue-generating potential. The condemned landowner gets paid market value for the property. If the landowner values her property more than its value for development purposes, she is free to pay a premium and buy it back. But if she really values the property more than its development value, she should be willing to do that (once).

It is unclear to me which concept of property rights would produce a more equitable outcome than this one. The alternative social choice -- honoring A's preferences to not develop her land -- results in shifting tax burdens to B, C, D, and E, even though A is the person with the highest income (albeit a psychic income). What makes this a desirable outcome?

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nobody.really
on December 30, 2015 at 13:21:15 pm

"The condemned landowner gets paid market value for the property. If the landowner values her property more than its value for development purposes, she is free to pay a premium and buy it back. But if she really values the property more than its development value, she should be willing to do that (once)."

I must say that is rather *gracious* of you. So in order to keep my property I must now first sell it to the state (at a "market" value determined by the State,BTW) and then later provide the State with additional funds in order for me to make use (or non-use) of my property. But I should only have to do this once. That is truly magnanimous of the State!!!

But - it ain't gonna work out like that - using your own example, Owner A still has no desire to develop her property and so the same conditions obtain. B,C,D, and E may still *suffer* a loss of market value / potential, should A decide to grow dandelions on her property. What prevents the State from once again using its eminent domain powers to once again condemn the property so as to garner a higher tax base?

But more than anything else, are we now to allow the State to decide what is a proper use of property (absent any illegalities). Is the States DESIRE for greater income sufficient to override the stated preference of a property holder?

Let me take it a step further (an actual example from my little slice of heaven). A man seeks permits to build eleven homes on suitable acreage. He is informed by the City that permits will be granted ONLY if he commits to building 21 homes, the unstated reason being that 21 homes will provide a greater increase in the tax base.
How should he respond?
Here is what he did: Dear City Council: "Buzz off." Under what authority are you empowered to compel me to expend higher levels of my own capital (which he did not have, BTW) in order to meet your own policy / tax objectives.

Property owner has had the acreage vacant and undeveloped for the past 10 years. The City receives no additional tax revenue.

Would you disagree with him? or have we come so far that we now permit the state to determine the personal investment / capital outlays of the citizenry?

Nobody really would want to see that, now would they?

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gabe
on December 30, 2015 at 14:21:55 pm

So in order to keep my property I must now first sell it to the state (at a “market” value determined by the State,BTW)….

Well, market value to be determined by a court. And yes, that’s how eminent domain works. If you disapprove of that, then presumably you disapprove of using eminent domain for ANY purpose – highways, power lines, airport expansions, etc.

But – it ain’t gonna work out like that – using your own example, Owner A still has no desire to develop her property and so the same conditions obtain. B,C,D, and E may still *suffer* a loss of market value / potential, should A decide to grow dandelions on her property.

The foregone value on B’s, C’s, D’s, and E’s property would be recovered via the price the state would charge A to buy back the land.

What prevents the State from once again using its eminent domain powers to once again condemn the property so as to garner a higher tax base?

That's the question I had in mind when I specified "once."

I’d guess that the state would retain the right to re-condemn A’s land, but then would have to pay the “market price” for the land – which would reflect the value that A paid to buy it back from the state. Thus, the state could condemn and sell the property back to A a dozen times over, but neither the state nor A would get rich off the transactions.

But I could imagine some tricky cases. Imagine the state condemns A’s land and A buys it back at what would seem to be a higher-than-market rate. Then there's a real estate crash, and all land declines in value. The state again condemns A’s land, but argues that it shouldn’t have to pay the price that A paid before because that reflected a pre-crash price; everything should be adjusted downward. Tough call.

Is the States DESIRE for greater income sufficient to override the stated preference of a property holder?

You miss the point: The government is going to raise its required revenues, regardless. The only question is from whom it raises them. Should it raise them from A, B, C, D, and E, more or less evenly? Or should A get to make a unilateral decision that has the effect of shifting the burden onto everyone else (a/k/a a negative externality)?

Libertarians like to imagine that property is the archetypical example of the sphere of autonomy, where each landowner is free to act without affecting, or being affected by, her neighbor. My point is that this is a myth. In the absence of some unmanipulable taxation scheme (e.g., conceptually, a tax on each plot’s earning potential), each landowner’s choices will affect the others.

I understand that you don’t like acknowledging that a landowner’s unilateral choices will affect his neighbors. I don’t offer the hypothetical so that you will like it. I offer the hypothetical to illustrate the complexities involved.

A man seeks permits to build eleven homes on suitable acreage. He is informed by the City that permits will be granted ONLY if he commits to building 21 homes, the unstated reason being that 21 homes will provide a greater increase in the tax base.

An interesting issue: How much discretion does the city have to grant or withhold building permits, and should economic development be a basis upon which to exercise this discretion? All I’ll say is that this doesn’t have a lot to do with eminent domain….

…unless your state recognizes reverse condemnation proceedings (a/k/a “buy the farm” laws)! In that case, the landowner would have a backstop on the extent to which the government could jerk him around. Under these laws, the landowner could sue to compel the state to acquiesce to his development proposals, or to buy him out at market rates. So if the government was merely playing chicken with the landowner, trying to get a private party to do something the government would be unwilling to do/facilitate on its own, then the government would have to back down. But if the government were willing to build/subcontract the development, it could then proceed to buy out the landowner at market rates.

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nobody.really
on December 30, 2015 at 16:00:37 pm

" But if the government were willing to build/subcontract the development, it could then proceed to buy out the landowner at market rates."

My goodness, is nobody really advocating that the guvmn't get into the business of building homes.

1) I do recognize that one's use (or non-use) of property may either adversely or positively impact a neighbors property. THAT is the way it is. Yet, this fact should not be sufficient to enable the guvmn't to either compel certain usages (as in my example) or force a sale of the [property so that state coffers may be filled.

2) "You miss the point: The government is going to raise its required revenues, regardless. The only question is from whom it raises them. Should it raise them from A, B, C, D, and E, more or less evenly? Or should A get to make a unilateral decision that has the effect of shifting the burden onto everyone else (a/k/a a negative externality)? "
Actually, it is not that I miss the point; rather it is that I do not accept your underlying predicate: That the government in pursuit of a higher revenue stream is entitled to tax a property owner at a rate that is unfair for "A" when the tax scheme is / has been based upon use / development and not potential. Again, consider my example - should the City then tax the property as if it contained 21 developed houses.
No, what is actually done, is that the property may be rezoned to say "multi-family" housing. However, irrespective of the zoning designation, it is manifestly unfair to (use your example) tax property owner A as if she, like her neighbors B,C,D,E, has actually developed the lot. That is what you are proposing with your example. The State cannot charge a rate higher than specified by statute simply because it needs money. What a wonderful world it would be if the State could simply declare that my own little lot is actually a factory and can then charge commercial rates. Nobody really wants that?

As for owners B thru E, THEY are perfectly free to make a reasonable offer to owner A; yet, if A demurs, then B-E simply have to live with it. Not much different than my neighbors crummy landscaping or green and orange house. Or are we to put the State in the business of Homeowners Associations - a collection of proto-fascists if there ever was one!

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gabe
on December 30, 2015 at 16:23:28 pm

If the country meant to apply the Bill of Rights against the states in 1868, which is very probably true, I think they meant to apply against the states what the Bill of Rights originally meant, rather than applying misinterpretations against the states. So I think the focus should be more on the meaning in 1789 than the meaning in 1868.

But either way, the plain language of the Takings Clause simply says what happens if private property is taken for public use: just compensation must be paid. It doesn't say that all takings of property have to be for public use. For example, if a court does not like a particular tax, it cannot require that the government pay the money back to the taxpayer, because the government wants to spend the money to buy useful things, rather than wanting to use the money itself.

In the Kelo situation, I have no difficulty concluding that there was a public use. If there wasn't then no compensation would be owed. But there was a public use in Kelo, because economic health is a public interest. So judges can demand "just compensation" be paid by the government. In the Kelo case, "just compensation" should have been an amount vastly exceeding fair market value, and setting the amount high enough would accomplish exactly the same goal of people who think (mistakenly) that the government had no authority to take the property.

I agree with Abraham Lincoln that "the Constitution itself impliedly admits that a person may be deprived of property...." The real question is whether compensation needs to be paid, and if so how much.

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Andrew Hyman
on December 30, 2015 at 17:23:46 pm

I find it hard to believe that the Founders supported uncompensated takings for no public purpose (tantamount to theft), but required just compensation if there was a public use. A more logical interpretation is that--absent a public use--the government cannot condemn private property.

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Mark Pulliam
on December 30, 2015 at 17:40:38 pm

N B

You give the game away with the opening bid:
" City with 5 plots need to raise $10 to cover public expenses "

The City is not "with" 5 plots. People in the City **own** 5 plots. It is either their property or not.

The "needs" are for the functions of the City; a purpose for taxation (which can be, often is, confiscatory). Taxes based on " fair market value" determined as the optimum economic use to obtain a return often fall into that category and people get forced out of their ownership by taxation. In so doing the City does not get the property, nor direct its ownership, simply encumber its use. All that is quite different from "taking."

Taking is **supposed** to require JUST COMPENSATION which may or may not be equated by "fair value" (market or other).

Property is a relationship. Some wish to assert it is a relationship of the person * through *the "City" (or other collective). Libertarians (generally) will assert that the City only has a relationship through the person.

Take your choice (there is no such thing as "collective choice;" what's yours?).

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R Richard Schweitzer
on December 30, 2015 at 17:53:39 pm

<blockquote<[I]s nobody really advocating that the guvmn’t get into the business of building homes?

That’s just silly. Plenty of people have advocated it, and various units of government have been in that business for decades – perhaps millennia.

I do not accept your underlying predicate: That the government in pursuit of a higher revenue stream is entitled to tax a property owner at a rate that is unfair for “A” when the tax scheme is / has been based upon use / development and not potential.

Agreed. But I am not aware that property taxes must be based on upon use/development. And I argue that such a taxation scheme creates some obvious inefficiencies and some arguable externalities. But yes, constitution/statute/ordinance/regulation/case law would govern, even if they result in inefficiencies and externalities.

Again, consider my example – should the City then tax the property as if it contained 21 developed houses?

Yes -- I can see efficiencies in doing so, and I know of no constitutional prohibition on taxing jurisdictions raising funds on this basis.

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nobody.really
on December 30, 2015 at 18:17:32 pm

Nobody:

There may indeed be efficiencies in doing so - but isn't that beside the point. It may very well be more efficient to simply station a tax collector at every factory in the land and "demand" a workers payroll taxes be garnered, rather than on April 15. In fact there may be no constitutional limitation on this. Yet, governing statutes would apply - that is my point. You argue from economic efficiency - I also do not observe an economic efficiency clause in the constitution.

Yet, let us go back to another favorite topic of yours - income inequality. In your example, let us suppose that Property Owner A is a) a minority or b) a retired working stiff on fixed income.
Would you change your calculation or at least allow that economic efficiency is insufficient to ignore current statutory limitations - or are there only certain instances where "social justice" trumps state efficiency requirements.

To my mind a taking is not simply the forced sale of a piece of property but also a government imposed obligation (as in my example) to deploy my accumulated capital (or be forced to borrow) for a state determined efficiency goal.

This is not liberty!

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gabe
on December 30, 2015 at 20:05:00 pm

They absolutely did support uncompensated takings in many cases. When people commit crimes and are fined, there's no compensation. When they pay taxes, there's no compensation. When there's a dispute in civil court and one person has to fork over money or property, there's no compensation.

The Takings Clause is about what happens when property is taken for public use: just compensation must be paid. So the Court should have required a much greater compensation in the Kelo case.

Regarding states that steal money or property from one person to give another person, no one disputes that the framers in 1789 deliberately allowed states to do that, given that they did not want the Bill or Rights to apply against the states (see Barron v. Baltimore). Of course, they also hoped that a state having a republican form of government would be unlikely to do that kind of thing.

Of course, the Fifth Amendment nowhere says "public purpose". What it says is "public use". That fact alone should make us suspicious of the alleged "public purpose" doctrine". When Lincoln and Congress deprived shaveowners of slaves in federal territories, they refused compensation, even though there was definitely a public purpose (i.e. freedom and justice) but there was no public use, so I don't think compensation was required.

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Andrew Hyman
on December 30, 2015 at 20:29:15 pm

Criminal fines, taxes, and court-ordered damages as part of a civil judgment are not the same as taking A's property to give to B, or even condemning A's property to build a road. Apples and oranges. Somin discusses the proposed emancipation of slaves at length in his book. The contemporaneous debate is very illuminating.

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Mark Pulliam
on December 30, 2015 at 20:40:29 pm

Economic health is in the public interest, but one of the main the causes for reviling that many of us have is the issue of whether or not the economy was unhealthy or would most certainly become unhealthy without government involvement. There was no blight, therefore no need for government intervention to fix a broken economy.

The question of takings is the question of use vs abuse of government powers. In democratic governments, governmental abuse generally takes the form of going too far in doing "good" things. Democracies pave a very well constructed road to hell using a legion of good intentions. The value in the narrow interpretation is in the fact that the "good" intentions must be constrained to reasonableness, otherwise the democracy easily becomes abusive; i.e. "Do it for the children (and put their parents out of work in the process)." A narrowing of governmental powers are needed to help reduce "do-goody" destructiveness.

The questions in a case such as Kelo are the question of whether government powers should be used to make things better when they are already working satisfactorily, and when and how a line should be drawn to prevent the abuse of government powers.

Blackstone commented that one of the purposes of government was to support economic growth by engaging in business affairs. It is this line of thinking that leads some American government officials to try to use government influence economic growth. I would agree only to a point. When government becomes overly involved in the economy it starts picking winners and losers, and when that happens corruptions take place that are generally more harmful than the proposed acts of good intentions. But there is nothing wrong with building a road that benefits everyone, not selected winners and losers.

I think it is nice that guys like Somin are giving voice to the principles behind takings. But will his voice be heard anywhere outside of libertarian circles?

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Scott Amorian
on December 30, 2015 at 20:44:08 pm

Taking A's property and giving it to B happens all the time in the United States; rich people are taxed at higher rates but they don't get a higher percentage of benefits. It's plain old wealth redistribution, and is constitutional, whatever one may think of the policy merits.

If we're talking about the government taking my house and giving it to my next-door neighbor, I would look upon my neighbor as a member of the public, and so it would fall under "public use". A court would therefore have to require "just compensation", which in my opinion would have to be well over ten times fair market value (assuming that I have not created a nuisance or what have you).

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Andrew Hyman
on December 31, 2015 at 11:44:32 am

Andrew:

Earlier you asserted that economic health is in the public interest and therefore Kelo may be said to be public use.

I find this disturbing and would liken this position to the same arguments made in an effort to further expand the "purview" of the Commerce Clause. If there is some dimly, yet still apprehended, perceived economic "benefit" to be realized by governmental action then a) it is granted to Congress under Commerce Clause doctrine to take action or b) the government may take my home for this novel form of public "use."

I think that we may be making the error of confusing a *civic* good (interest), i.e., a healthy economy, with a PUBLIC good, i.e., some realizable (potential) benefit which will derive from government action and in which all members of the citizenry may participate and clearly benefit (roads, sidewalks, military bases, etc). The civic good is best understood as the proper functioning of private organizations, associations, etc. This is not to say that Courts of Law should not be available to resolve disputes arising from the interactions of the associations / citizens - but rather that the direction and general control of these events, trends, currents ought to reside in the people. While it is salutary that economic health be recognized by the State, it's role ought to be limited to removing obstacles (direct / prejudicial / harmful) to the effective exchange amongst the people and their associations.

To transform a civic good into a PUBLIC good entails providing the State with an implied / de facto grant of enormous power that has the disadvantage of unlimited elasticity - that is to say, it may be shaped, molded to fit any exigent circumstance. It would seem that this was not the intent of the Framers of the Constitution. We may parse their adopted wording in such a fashion as to envision this expanded level of State action as being proper. Yet, these same men have provided ample commentary (Federalist, etc) supporting an alternate conception of State action.

Perhaps, however, the bigger concern is the "elasticity" of such a conception. Consider the Commerce Clause and how it came to regulate how many bushels of wheat a man may grow for his own sustenance.
Let us suppose, some developer wants my acreage. Without too much effort he / she may succedd in changing the zoning designation. Voila, I am now living in a commercial district AND the factory he wishes to build will yield many times more real estate tax and sales and income tax to the State.
Am I to be sent to find some other humble little abode. It matters not that they (State or builder) pay me more than fair market value. I believe I have a liberty interest in my home and orchard that should be not only be safe from State intrusion but SHOULD be protected by the State.

No, let us not do the the "Takings Clause" what has been done to the Commerce Clause.

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gabe
on December 31, 2015 at 12:08:13 pm

Gave, first of all I should probably mention that stuff I've said in this comment thread is speculation on my part, and I've not yet done the hard studying necessary to form a definite opinion. Incidentally, here's a link to an excellent article on the original meaning of the Takings Clause:

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2056&context=facpub

I said above "there was a public use in Kelo, because economic health is a public interest." I didn't mean that's the only reason. Other reasons include that the property was taken not merely because it was valuable, but rather so that it could be put to a particular use. And, the intended use was not by the original owner, but rather was use by a member of the public.

So I think there's a very reasonable argument that it was a taking for public use. I note that the predecessor provisions in the Massachusetts and Vermont constitutions (as well as Madison's original draft version) said that the public use must be required by public exigencies or the like, but that language was removed. If it had remained, then I agree the taking in Kelo would have been forbidden.

I don't see why "just compensation" cannot be boosted up high enough to accomplish virtually everything that opponents of the Kelo decision would like to accomplish, and I suspect doing so would be more consistent with the Clause's language. The language of the clause does not say anything about what happens when a taking is not for "use", or is for a use that is not "public". I suspect that language was deliberate, so that no compensation would be required when people pay taxes, or fines, or civil judgments, et cetera.

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Andrew Hyman
on December 31, 2015 at 12:08:59 pm

Meant "Gabe", sorry.

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Andrew Hyman
on December 31, 2015 at 12:37:29 pm

Andrew:

Thanks - reviewed introduction - looks promising and interesting (and concerning also).
Hope to get to it soon.

BTW

Happy New Year

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gabe
on December 31, 2015 at 13:07:05 pm

Vice versa. :)

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Andrew Hyman
on December 31, 2015 at 15:10:03 pm

Criminal fines, taxes, and court-ordered damages as part of a civil judgment are not the same as taking A’s property to give to B, or even condemning A’s property to build a road.

Indeed. Yes, the Fifth Amendment governs takings as well as criminal fines -- but under separate clauses:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

In short, the Fifth Amendment provides for depriving private citizens of life (capital punishment), liberty (incarceration), and property (fines, garnishment, repossession) -- but only after due process of law (the opportunity for trial or other proceeding).

The Fifth Amendment then provides for taking private property for public use -- but only with just compensation. Whole 'nuther matter than deprivation following due process.

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nobody.really
on December 31, 2015 at 15:50:31 pm

The DP Clause and the Takings Clause are intimately interconnected. It's because of the DP Clause that your governor is forbidden to take private property for public use without a law authorizing him to do so.

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Andrew Hyman
on January 02, 2016 at 08:27:21 am

I believe the critical difference is that (prior to steam power) the mill required a geographically extended infrastructure -- the mill pond and mill race -- to provide water power. As is sometimes the case with rights-of-way for roads and power lines, this potentially subjected the mill owner to an intractable problem of dealing with a holdout, who may demand artificially inflated compensation for cooperating. Note that English common law included a related doctrine of "mill holms" -- lands created, not only by the rise and fall of the impounded waters, but also by the accumulation of sediment in a mill pond. In an exception to the usual riparian rule, holms remained the property of the mill owner.

I recognize that the holdout argument is easily abused and too often invoked where it should not apply, but it is does have a rational economic and legal foundation.

(Disclosure: I own an old mill in Virginia and its associated water rights, which were acquired by a previous owner some 250 years ago -- in part through the use of eminent domain under English law.)

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Bucklander

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