Ninety percent of eminent domain cases would not be instigated if the government and by extension, the public had to pay the full costs of acquiring the property, University of Chicago law professor Richard Epstein, author of Takings: Private Property and Eminent Domain, told me at a recent CATO Institute forum on property rights. Whenever taxpayers are asked to pay the real market price of converting private land to public use – be it for a park, a road, a school, wetlands protection or whatever – a majority almost always votes it down, Epstein says. So the government just takes the property instead and, as a result, voters never have to pay for the harm they cause. Systematic undercompensation in the vast majority of eminent domain cases is nothing more than a legalized method of stealing property under the guise of the common good. And wronged property owners seldom find redress in the courts, which routinely treat property rights as the poor relations of other, more politically correct, constitutional protections. Prof. Epstein explained why. The modern Supreme Court s attitude toward private property – as evidenced in its 2005 Kelo decision – is not based on Roman or English common law, which considered property a foundational right,but on relatively recent notions from the progressive good government movement that predominated in the U.S. between 1900 and 1932. Progressives consider collective rights to be on a higher moral plane than individual rights that are supposed to be protected by the Constitution. So the courts take a very broad definition of political power, but a very narrow definition of property rights, Prof. Epstein told forum participants. In my view, it should be the opposite. This what’s-yours-is-ours philosophy is what’s really behind the vast majority of government confiscations of private property by eminent domain. Landowners have to be forced to sell precisely because they are so seldom compensated for the true value of their property. Of course, taking property by eminent domain is the polar opposite of the uncoerced transaction between willing buyer and willing seller that is the hallmark of a free society. Every time we allow our government officials to confiscate another citizen’s property on our behalf, we stray even further from that ideal – and erode our own constitutional rights as well.
