The Washington Times recently published my article on increased compensation and procedural protections for eminent domain victims. Here is an excerpt:
On last month’s column in eminent domain, I advocated restricting eminent domain abuse by restoring constitutional limits on the range of purposes for which government can take private property. Although the Fifth Amendment allows convictions that are for “public use only,” all too often the courts allow government officials to seize property for the benefit of powerful private interests.
But expropriations that violate public use restrictions and victimize the poor and politically weak are far from the only problem with today’s eminent domain policy. Other abuses include grossly inadequate compensation received by many landowners whose land is confiscated and weak procedural limitations on eminent domain….
The Fifth Amendment specifically mandates that homeowners receive “just compensation,” which the Supreme Court has long interpreted as the “fair market value” of the property. In reality, however, studies show that most homeowners get less than that, especially less wealthy homeowners….
Even the full fair market value is often not enough to fully compensate homeowners for their losses. Many people value their property above what they could get for it on the market. Take, for example, homeowners and small businesses that have been in the same location for years and have long-lasting relationships with friends, neighbors, and customers in the area. Non-profit institutions, such as churches and other places of worship, also often have great value that goes beyond the market price of the land on which they sit. This “subjective value” is often not compensated for when the property is condemned, even if the owners get the full market value of the land….
There is also a need for stronger procedural protections for homeowners. Some state and local governments use “quick take” expropriations, under which they can confiscate property even before paying compensation and litigate legal challenges. The federal government uses equally egregious procedures for many pipeline seizures and border barriers. Legislative reforms should ensure that the government can take ownership only after the courts have duly resolved any legal challenge and full compensation has been paid. Government agencies should not be allowed to take first and ask questions about legality and compensation later.
As noted, this is my second piece in a two-part series. The first part is available here. Both are part of the Times’ Series “To the Republic”, which features articles on a variety of constitutional topics, from various mostly conservative (and some libertarian) commentators. Includes contributions from the Arizona Supreme Court Justice. Clint bolick (on the power of judicial review), and the Volokh Conspiracy itself Keith whittington (in impeachment).
I have written on a variety of eminent domain related topics in greater detail in my book. The hand that grabs: Kelo v. City of New London and the limits of eminent domain.