Posted by Ilya Somin:
Federal Government Will Use Eminent Domain to Take 500 Acres of Property for
Flight 93 September 11 Memorial:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241741620
The federal government has [1]announced its intention to condemn 500
acres of land held by seven property owners in order to use it as part
of a memorial for those killed on Flight 93 on September 11 [HT:
several VC readers who alerted me to the story]. In [2]this December
post written when the use of eminent domain was just under
consideration, I explained why this condemnation is clearly
constitutional even under the relatively restrictive interpretation of
the Takings Clause that I and most other critics of[3] Kelo v. City of
New London support:
As a legal matter, I think it's fairly clear that this proposed
taking would be constitutional. Although I favor a more restrictive
interpretation of the Public Use Clause of the Fifth Amendment than
that adopted by the Supreme Court in cases such as Kelo v. City of
New London (where it held that virtually any potential "benefit" to
the public counts as a "public use" for which property can be taken
by condemnation), this is still a fairly easy case. After all, the
condemned property would be used for a government-owned and
government-run memorial that will be open to the general public.
Thus, there is clearly a "public use" in the intuitive sense of the
word (ownership by the government and/or open access for the
general public).
The case would in fact be similar to the famous 1896 Supreme Court
decision in United States v. Gettysburg Electric Railway Co., where
the Court upheld the condemnation of property for the purpose of
building a monument on the site of the Battle of Gettysburg.
Contrary to widespread belief, the Gettysburg Court did not
foreshadow cases like Kelo in holding that any public benefit
counts as a public use; to the contrary, the Court emphasized that
a condemnation transferring property to a private entity should be
subject to stricter scrutiny than one "where the government intends
to use the land itself" (I discuss Gettysburg more fully on pp.
242-43 of [4]this article). In this case, however, as in
Gettysburg, the government does in fact "intend . . . to use the
land itself," so there is no constitutional problem.
I also argued in that post that the Flight 93 Memorial takings may be
justified on policy grounds:
Whether the use of eminent domain is justified on policy grounds is
a tougher question. Nonetheless, I would tentatively say that it
is. This is a classic case where eminent domain might prove
necessary because 1) the government needs a specific site for its
project (there are obvious advantages to building the memorial on
the site where the plane crashed), 2) holdout problems might be an
issue, and 3) they could not be overcome through secret purchase
because this is a public project that must be openly discussed and
presented in advance. By contrast, private developers can usually
use secret purchase to forestall "strategic holdouts" and therefore
eminent domain is rarely if ever needed to assemble land for
private projects that genuinely create more economic value than the
current uses of the land the developers seek to acquire (I discuss
these points at greater length on pp. 205-10 of [5]this article).
I do have one important caveat to my conclusion on the policy issue.
According to [6]news reports, the memorial will be part of a massive
2200 acre national park (including 500 acres of property that will be
forcibly acquired by eminent domain from the seven owners). I suspect
that the government could have built a simple, dignified memorial to
the Flight 93 victims without using so much land - and therefore
without having to undermine property rights to such a great extent.
The actual area where the plane crashed is presumably far smaller than
2200 acres, or even 500 acres. However, I am reluctant to state a
definitive conclusion on this issue because I have not studied the
memorial plans in detail.
References
1. http://www.foxnews.com/story/0,2933,519277,00.html
2. http://volokh.com/posts/1230588153.shtml
3. http://www.law.cornell.edu/supct/html/04-108.ZS.html
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874865
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874865
6. http://www.foxnews.com/story/0,2933,519277,00.html
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