Wednesday, July 06, 2005

Towards a Kelo Amendment to the U.S. Constitution

Suppose that you don't care much for the recent case of Kelo v. City of New London, (No. 04-108, slip op. (June 23, 2005)), in which a slim majority of the U.S. Supreme Court upheld the taking of private property for private (as opposed to the Fifth Amendment's "public") use. What can you do about it?

You can greatly mitigate the practical effect of Kelo by taking the fight to the state and local level. The Institute for Justice has taken the lead in that effort through its Hands Off My Home initiative. Some states will undoubtedly escape reform, however, and Kelo will at all events continue to control takings by federal officials.

You can support new federal legislation designed to correct Kelo. Texas Senator John Cornyn has introduced a bill, for instance, that aims both to restrict how federal officials take private property and to deny federal funds to state or local projects that fail to satisfy those same restrictions. His bill, S. 1313, [PDF format] counters Kelo by saying, in section 3(b), “In this Act, the term ‘public use’ shall not be construed to include economic development. "

Cornyn's bill has won support among advocates for property rights. Commentators largely approve of its constitutionality, though some doubt the efficacy of the bill. Notably, S. 1313 would at best still allow state and local takings for private use pursuant to a development plan and absent a showing of bad intent. It would, in other words, leave Kelo untouched as a matter of constitutional law.

To drive a stake through the heart of Kelo, you need either to have the Supreme Court reverse it or to amend the U.S. Constitution. The first option doesn't look likely any time soon, so let us focus on the second one: Correcting Kelo via Amendment XXVIII of the Constitution. Specifically, let's set aside the question of the political viability of such an amendment and focus on its wording.

How would you write a constitutional amendment to correct Kelo? So long as you're cleaning house, you might as well also correct the Supreme Court precedents that led to that opinion. How, then, would you word an Amendment XXVIII to clarify that "public use" in the Fifth Amendment does not mean "economic development" (per Kelo) nor "use by other private parties in order to reduce the concentration of land ownership" (per Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984)), nor "use by a mix of public and private parties as part of a community redevelopment plan" (per Berman v. Parker, 348 U.S. 26 (1954))?

I have some ideas for how to word such a Kelo amendment (or, if you prefer, "an anti-Kelo amendment"; I, however, choose to name the amendment in honor of the harmed party rather than the odious opinion). I'm going to take a breather, though, to first see if anyone has questions about the problem. I also invite commentators to preempt my effort by offering their own suggestions for the language of Amendment XXVIII. I think it presents a tough, but not insolvable, challenge.


Gil said...

Good Luck.

While you're at it, you might try to clarify "just compensation", which I think should include consideration for the ideosyncratic value a citizen places on his home and the costs associated with an unwanted move.

Gil said...

D'oh. "idiosyncratic"

Will said...

I think I might just return to the original understanding, per Thomas's dissent. "The government may not take property unless the government owns, or the public retains a legal right to use, the property so taken."

Tom W. Bell said...

Gil: Whew. That's a tough one. If we could figure out market prices without using market mechanisms, socialism might work!

Will: That's a good start, but I'd want to add lawerly qualifiers. For instance, what if *some* of the property taken for redevelopment becomes public streets? Or what if the public has a legal right to use property taken and transferred to private properties, albeit only subject to restrictions. A hotel, for instance, might qualify on those grounds. But I would want to disallow that sort of taking.

Gil said...


I know.

But, you see, that's why the whole concept of takings is so offensive to me.

Takings with "just compensation" is incoherent. If the compensation is, indeed, just then the property can be purchased.

Slapping on a false label of "just compensation" which really means whatever the government declares is a fair-market price doesn't make it just. It's an arbitrary tax on victims who are unlucky enough to own property that the State (and cronies) wish to take.

If the real cost of the property had to be borne by all and publicly justified, then perhaps even the genuine "public use" projects wouldn't be so attractive anymore.

I think they should only use actual, voluntary, purchases to acquire property. Perhaps there could be an exception for "holdouts" with some objective test, but I really doubt that this would be necessary. There are ways around most holdout situations without resorting to stealing.

I apologize for distracting from the exercise you proposed. I agree that limiting takings to "public use" projects is a step in the right direction. But I can't help feeling depressed about the entire concept having so much legitimacy, and worry that working on refinements might be adding some.

Glen Whitman said...

Maybe this makes me "wet" libertarian, but I think hold-outs can be a real problem, so I wouldn't favor eliminating eminent domain entirely. Sometimes there are ways to get around a hold-out problem, but not always. If we required voluntary sale in every case, we'd likely end up with circuitous highways built in bizarre (or at least suboptimal) locations.

But eminent domain does need to be constitutionally limited, and I think a bright-line rule is best. I'd probably start with a rule like Will's, and then add some clarifications and qualifications -- such as requiring that any property taken must remain in a public use for >10 years before any sale or transfer to a non-public use.

I'd also be tempted, as long as we were amending the Constitution to better secure property rights, to make it clear that partial takings are still takings. But that raises the whole issue of whether a regulatory taking (say, a restriction on the use of my land to protect an endangered bird) constitutes "public use." If not, then another exception might be required.

Tom W. Bell said...

Gil: Since you insist, and for good reason, to press for a fix of the "just compensation" problem, check out Don Boudreaux's solution, at:

Tom W. Bell said...

Glen: I was thinking of 20 years, but I read you on that suggestion. At the least, that approach offers a bright-line rule that allows for eventual privatization while largely obviating the public choice problems. Still, though, I think we need to deal with the problem of leasehold estates. What if the city takes my land and gives Hilton a 99-year lease? The city holds title and the public gets access (albeit at a price). But the public choice problem still looms.

Anonymous said...

Here's a crack at it:

Private property may not be taken, except to construct public buildings or infrastructure, and must be compensated at double the highest appraised value in the 5 years prior to the taking.

Taken property must be first offered to the original owner, at half the original price, before it can be sold to any other private party, unless 20 years have passed.

Tom W. Bell said...

Nice work, Anon.! I especially like the second sentence. Regarding the first: What about private property taken for wilderness preserve?