Takings: Private Property and the Power of Eminent Domain

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If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.

Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?

Zoning, rent control, progressive and special taxes, workers' compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein's theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

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Takings: Private Property and the Power of Eminent Domain Review

This fine book by Prof. Richard Epstein has probably been more influential than the casual reader may be aware.The heart of Epstein's claim is that _anything_ the government does that imposes any sort of "cost" on anybody amounts to a "taking" for which the Constitution requires just compensation. We all know how this is supposed to work as applied to the usual exercise of eminent domain. But Epstein casts his net wide and argues that the takings clause applies to all sorts of things you never would have thought of -- welfare programs, rent control, jiggery-pokery with the national currency, you name it.The impact of the book is evident mainly through "negative" evidence. For example, some readers may recall that during the Clarence Thomas hearings, somebody asked Thomas if he believed the stuff in this book (as the Congresscritter in question clearly did not). I think Thomas managed to duck the question, but the point was made. And at any rate, it tells you something that somebody found it important to _ask_ the question in the first place.Then, too, my own property-law casebook remarks somewhere near the end that Epstein's views on "takings" have not been found convincing by too many people. Interesting that the book still finds it necessary to mention his work, then.So check it out. Sure, it's radical, and (let's admit it frankly) it's probably not a correct interpretation of the framers' intent. But if you're not a tax-and-spend Congresscritter, maybe you'll find it as pregnant and alluring a suggestion as I do. And it's one of Epstein's best books; I think he wrote it before he had completely converted to utilitarianism. You don't have to agree with it, but you should at least learn why Federalistas are afraid of it. Help other customers find the most helpful reviews Was this review helpful to you? Yes No Report abuse | PermalinkComment�Comment (1)

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