Here's One Good Reason To Have a Takings Clause
This picture has been making the rounds - it's an apartment buiding in the city of Wenling, in Zhejiang province, China. The government wanted to demolish the building to make way for a road, but one elderly couple held out for more compensation. And so the government decided to call their bluff and wrap the highway around their building. No demolition, no compensation -- take that, Comrade!
I mention this because if many liberals had their way, the elderly couple would have no claim to compensation in the United States, either.
Debate has been raging for decades about whether the government can "take" your property within the meaning of the Fifth Amendment's Takings Clause even if the state does not literally seize your property. The movement to recognize regulatory takings -- a cause championed by our own Richard Epstein -- has caused liberals to take an absurdly narrow reading of the Fifth Amendment. In one 1992 case, Justice Harry Blackmun argued that James Madison intended the takings clause to be limited to "direct, physical takings." Nothing short of bulldozers at the front door would cut it.
Although scholars have struggled to prove Blackmun correct, Professor Epstein (and others) have forcefully shown that the Constitution was written against the common law background of property rights -- rights that were, and are, much more complex than mere possession. If state action deprives you of use, enjoyment, or profit from your land, you've suffered a "taking." The contrary interpretation -- still held by many liberal scholars -- puts us straight on the road to, well, Wenling.
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Comments:
Jun '12
Re: Here's One Good Reason To Have a Takings Clause
I just shared this on facebook. I hope my liberal friends read this as they continue to thrash the constitution and grow the government.
Oct '11
Re: Here's One Good Reason To Have a Takings Clause
Wow. How'd you like to come across that in your car one late night in the fog?
May '12
Re: Here's One Good Reason To Have a Takings Clause
Certainly. Property rights refer to rights over attributes of an asset, not necessarily to the physical asset. The physical asset has no value without the rights to any particular attribute. I thought this was accepted definition, but apparently not in law?
Mar '11
Re: Here's One Good Reason To Have a Takings Clause
Actually, it's our inchoate rights, those which are not reduced to physical possession, that are our most valuable, and most at risk. My life, faculty of thought and intellect (such as it is), is a greater property right than any piece of real estate or other physical asset I may own. I can be deprived of my physical assets and still retain my essential humanity, which embodies those rights. A successful effort to water down the "takings" clause is but the first step to seizure of those rights which are granted to us through the operation of natural law.
Mar '11
Re: Here's One Good Reason To Have a Takings Clause
No, you are correct. One's property interest in any particular asset is bound up in the ability to control and use that asset. It's what gives you the right to sell me your car.
May '10
Re: Here's One Good Reason To Have a Takings Clause
I'm somewhat confused. It's liberals who are against eminent domain? Can you offer some examples? I thought it was conservatives who thought takings had gone too far.
Mar '11
Re: Here's One Good Reason To Have a Takings Clause
I think you're confusing eminent domain (appropriating private property for public use in exchange for fair compensation) with the liberal expansion of the definition of "public use", as we saw in the Kelo decision. It's the latter that is the source of the controversy between conservatives and liberals, not the idea of eminent domain per se.
May '12
Re: Here's One Good Reason To Have a Takings Clause
Well, not necessarily control of the asset. I think that's the point of "regulatory taking". Property rights refers to the ability to appropriate rents. Rents are generated through attributes of an asset (uses), but an asset can have many attributes, sometimes with multiple "property rights" holders to different attributes. In fact, an "asset" is nothing more than a bundle of attributes. The physical nature is not always instrumental.
A car may not suffer from such ambiguities (too much), but a business, or a home, may. Blocking the entrance of a house, for example, has implications for certain attributes of the house, even if the control of the asset is retained by the owner.
Jun '10
Re: Here's One Good Reason To Have a Takings Clause
Are there Personal Injury lawyers in China who will sue the person who runs over the refused-to-leave elderly couple crossing the street? Do they bear any responsibility in their choice to inhabit a road?
And in response to Albert Arthur's fog question above, never mind your car - China is full of coal trucks that operate pedal-to-the-metal and for whom any place road or road-related is fair game.
May '12
Re: Here's One Good Reason To Have a Takings Clause
I notice the highway is not seeing much use in the photo.
Is this one of those roads to ghost cities that China seems to excel in?
Sep '10
Re: Here's One Good Reason To Have a Takings Clause
Let's be honest here. This purpose of this post is not to start a serious discuss on the merits of the Takings Clause. It's about saying "Hey, there is house in the middle of the highway!"
Mar '11
Re: Here's One Good Reason To Have a Takings Clause
Adam?
Sep '12
Re: Here's One Good Reason To Have a Takings Clause
I believe a similar thing happened in England. They wanted to build a highway and one guy didn't want to give up his house, so they just built around him. But they were nice enough to build an on-ramp for him to get in and out of his place.
Jun '12
Re: Here's One Good Reason To Have a Takings Clause
Heck, even in my little town of 30 some odd thousand, there was a car dealership that wanted to buy up the whole block for their new sales lot, but one person wouldn't sell. So now you have the whole block with new cars, and one notch on one side is an older home.
Re: Here's One Good Reason To Have a Takings Clause
Vance, Vance - how can you say such a thing? Of course I want a serious discussion.But now that you mention it, that is quite a picture.
Re: Here's One Good Reason To Have a Takings Clause
The examples from England and the US are interesting. But based on the descriptions, those are cases where the property owner wouldn't sell at any price. But here, the property owners were simply trying to negotiate for better compensation, so instead big brother just built around them -- presumably the Chinese take the Blackmun approach that if your house isn't literally destroyed, no compensation is due.
Sep '12
Re: Here's One Good Reason To Have a Takings Clause
As I understand it, England has no concept of eminent domain, so the government had no power to simply take the house and stuff the owner's wallet with some consolation cash. The homeowner would not have had such an option in the US when dealing with the government. It seems like the Chinese case here is similar, if not exactly like the case in England.
If you look at this in another way: in a different time, I think most of us would expect the Chinese government to simply take the house and keep the consolation cash for strippers and blow. China's on the way to some good old fashioned rule of law, man in his castle, way of things it would seem.
May '10
Re: Here's One Good Reason To Have a Takings Clause
Illiniguy, et al, but building a highway is a public use, so isn't the whole premise of this post flawed?
Mar '11
Re: Here's One Good Reason To Have a Takings Clause
Not at all. The larger point is that there are some things which government must do for the benefit of the public as a whole, in this case providing an efficient means of binding the country together with an efficient transportation system (that's the generally accepted notion, you could argue for private roads, but that's not the issue here).
The tension between private and public use lies along the fault line of what constitutes "public" use, and how that "public" use can be accommodated and advanced without trampling on the rights of the private owner of the property to be used for that purpose. That accommodation comes through the notion of fair compensation. If one holds out at all costs, then we end up with such results as we see above. You have to hand it to the Chinese, they acceded to the demands of the private party here, but did so in a completely perverse way. In some ways, I see that as progress.
Sep '10
Re: Here's One Good Reason To Have a Takings Clause
The government did not take their property but they did take the usefulness and value away from that property, so should the be compensated? OK, that is an interesting legal question. But on the otherhand, there is a house in the middle of the highway! That's just funny.