Some Observations About Eminent Domain

A couple of days ago we posted a comment on eminent domain on the Volokh Conspiracy blog, and on reflection it occurs to us that it might not be a bad idea to share it with the readers of this blog as well. So here goes:

“What got Kelo the attention it received was the brazenness, the chutzpa of New London  which argued in the famouns (or is it infamous?) oral argument exchange between the city’s lawyer and Justice O’Connor, that the city could take any unoffending property (e.g. a Motel 6) and give its site to some fat cat for a fancy structure (e.g. a Ritz-Carlton Hotel), and still meet the Fifth Amendment’s “public use” limitation [on takings]. That went beyond the pale, and the country was rightly shocked when SCOTUS bought into such nonsense.

But as far as the breadth of government anti-property action is concerned, the NIMBY phenomenon… is far more harmful because it is…more widespread; it presents itself (and is often bought by the people) as a virtue [rather than as an abuse of government power]. Parties aggrieved by it have been officially declared by the federal courts to be [constitutional pariahs], nonpersons who are not entitled to relief, and that’s that.

“As the late Dick Babcock observed in his book THE ZONING GAME, the very captains of industry who run full-page ads in the Wall Street Journal denouncing government regulations, go back home to their leafy suburbs at the end of the day, where they insist that everything have the living daylights regulated out of it, down to harrassment of little kids selling lemonade to passersby.

“Those of us who have been at it for a while understand that there is no ‘law’ here. On the whole, the situation was correctly assessed by the late Bert Burgoyne, a great Detroit eminent domain lawyer, who observed that ‘The problem with this field of law is that liberal judges don’t believe in private property rights, and conservative judges don’t want to make the government pay.’ Thus, when it comes to takings, liberals who claim to be for strict enforcement of the Bill of Rights, abruptly embrace  “federalism” and don’t want the tail end — and only the tail end — of the Fifth Amendment enforced, leaving it to the parochial tender mercies of the locals. None of these folks acknowledge that the selective incorporation doctrine (which started with eminent domain) may either exist or have something to do with it, or that in the Boerne case SCOTUS was clear that the local legislature may not define constitutional terms. Except in eminent domain where its determination of the meaning of ‘public use’ is ‘well nigh conclusive.’

“But all this nonsense provides a lot of lucrative employment to specialized lawyers, and a lot of fodder for academics…whose efforts to make sense out of nonsense are [occasionally] interesting and sometimes entertaining.”

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