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Saturday, June 24, 2006

Kelo and the Executive Power

Yesterday -- clearly in response to the outrage over Kelo -- Pres. Bush issued an executive order directing federal agencies to restrain the use of the takings power to "situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."  It is not clear that this order will have any practical effect.  After all, the taking in Kelo was purportedly "for the purpose of benefiting the general public."  And, I suspect that the federal government does not directly engage in many economic development takings -- although federal dollars pay for many such takings. 

The order suggests, however, that post-Kelo outrage has more staying power that many observers anticipated.  It seems that Americans are more upset by compensated takings for "private" purposes than by "partial" regulatory takings.  (Excuse the shorthand terms.)  For years, property-rights advocates attempted, with little success, to stir up support for partial-takings legislation.  (An exception is Oregon, where voters have twice amended the state constitution to require compensation for regulations reducing property values.  I am not so surprised by this, in light of the stark contrast between land use winners and losers -- or between "givings" and "takings" -- that result from the urban growth boundaries there.)  Then, along comes Kelo and there is a giant rush to reform eminent domain law.  I know that there is much speculation about why people get so upset about eminent domain.  I suppose the answer is complicated one -- the endowment effect, class jealousies, middle-class anxieties, political grandstanding, and the Institute for Justice's remarkable p.r. machine.  But, I don't think anything captures the phenomenon better than Carol Rose's observation some years ago:  "There is something about land that makes you think that when you own it, it is really really yours." 

Posted by ngarnett on June 24, 2006 at 10:56 AM in Property | Permalink


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» Kelo and the Executive Power from PLF on Eminent Domain
by Timothy Sandefur Nicole Garnett has some more comments on President Bush's eminent domain executive order; she agrees with me and Ilya Somin that It is not clear that this order will have any practical effect. Hat tip: PropertyProf [Read More]

Tracked on Jun 26, 2006 4:31:13 PM

» Blog Round-Up from SCOTUSblog
Akin Gump's Katie Spencer has this round-up of recent SCOTUS-related postings from around the web: Here and here, Sentencing Law and Policy offers a few quick thoughts on the decisions handed down in Marsh and Recuenco. Sentencing Law and Policy... [Read More]

Tracked on Jun 26, 2006 4:36:58 PM


A lot of people I know who know nothing about the law reacted to Kelo wiht a force that I found surprising. In discussing the case with each of these folks, though, I discovered that they profoundly misunderstood the nature of the doctrine. They didn't realize that the government doesn't just "take" land, it takes it only pursuant to the condition that it pays you fairly for it.

So I think popular misunderstanding is behind much of the outrage, but this certainly doesn't explain the objections of those who actually understand the just compensation clause. I suspect this has to do with skepticism that government compensation for takings can ever really make property owners whole. I'm reminded of the behavioral psych experiment that found that people will trade indistinct tokens for the value that they're arbitrarily assigned but refuse to engage in similar trades when the token they're given has some personal value (I believe in the experiment it was a mug with their name on it).

It's not surprising that land has the kinds of qualities that make its value to its owners greater than what the market might assess from a detached perspective. Landowners often have deep personal connections to their parcels, which are tied up with their identities and personalities in ways that other kinds of property may not be. (Though the land/chattel distinction is far from a clean one--compare a condo bought purely as an investment property versus a watch that is a beloved family heirloom).

But then I'm not sure if this is just skepticism about valuation or a claim that property should be inviolate (in the sense that substantive due process says that some invasions of the body can never be justified, even in the face of strong countervailing state interests). The latter doesn't seem quite right to me. I think most people would be outraged if the government ousted them from their $300,000 property for exactly what it was worth on the market; but they'd probably be overjoyed and vacate happily if they were offered some windfall sum like a million dollars.

Posted by: Dave | Jun 26, 2006 2:24:54 PM

"above all things, abstain from taking people’s property, for men will sooner forget the death of their fathers than the loss of their patrimony." Niccolo Machiavelli, The Prince (Detmold trans.) (1513)

This explains why eminent domain warrants outrage that the Iraq War does not.

fuller selection:

And if you should be obliged to inflict capital punishment upon any one, then be sure to do so only when there is manifest cause and proper justification for it; and, above all things, abstain from taking people’s property, for men will sooner forget the death of their fathers than the loss of their patrimony. Besides, there will never be any lack of reasons for taking people’s property; and a prince who once begins to live by rapine will ever find excuses for seizing other people’s property.

Niccolo Machiavelli, The Prince (Detmold trans.) (1513)



Posted by: Bart Motes | Jun 25, 2006 1:08:44 AM

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