Thursday, October 19, 2006

Post-Kelo Property Rights

Law student Steve at Eminent Domain has a good synopsis of state initiatives aimed at overturning the most far-reaching aspects of the Supreme Court's 2005 decision in Kelo v. New London.

Citing Charlottesville writer Ron Bailey, he notes that a lot of proposals go farther than just restricting the use of eminent domain authority by state and municipal governments. They also attempt to change the way property owners are compensated (or not, as is mostly the case today) when regulations reduce the value of their property. "Regulatory takings" is still a muddled concept in the law, with no clear guidance from SCOTUS or other courts, so legislation -- especially voter-initiated legislation -- may finally clarify its meaning and circumscribe its use.

November 8 will bring a lot more news than just who controls Congress and whether Virginia marriage law becomes incontrovertibly confused.

On an unrelated topic, Steve also has an informative post about a Seventh Circuit oral argument about Indiana's requirement for voters to have a photo ID in order to vote. My own feeling on this subject is that it is not particularly burdensome, in the 21st century, to expect adults to have a photo ID. Perhaps requiring it for voting will provide an impetus for them to acquire the means to cash a check, travel by airplane, and get into an R-rated movie.


Lyle Solla-Yates said...

I take it you share the opinion of many property rights advocates that "partial takings" should be compensated?

Rick Sincere said...

I think whenever the government takes something from us, we should be compensated. Justice demands it.

Lyle Solla-Yates said...

That argument makes ethical sense to me. And yet I worry that it would lead to handicapping government efforts in service of the common good. I'm not entirely settled on this issue. The law is relatively clear that partial takings are almost never compensated, but I don't entirely get the reasoning for it, other than property ownership is not constitutionally protected, while the public health and welfare are, so they trump private property absent a near total loss of value. Sticky issues.
I haven't seen a good unbiased paper on what would actually result if we went full-bore property rights. Would it actually benefit society at large, or only a minority of wealthy landholders (land is highly concentrated in the hands of the wealthy few in this country) at the public expense? Most of the debate I've heard on this issue is highly ideological.

Lyle Solla-Yates said...

It occurs to me that a big part of my reluctance to add to the financial burden on government is that most of the revenue for the government comes from sources that I consider destructive and counterproductive. Higher building, sales, and income taxes are major societal problems, much more so I think than most people realize. However, if the added revenue to compensate landowners for partial takings came from less distortive sources like the land tax, carbon tax, or gasoline tax, I'd be all for it. There, I feel better.