Balkinization: Take My House: Please!

Getting above-market compensation is fine if you don't mind moving. But what if you like your house?

The whole Kelo issue is really the classic economic question of subjective vs. objective valuation. One can defend Kelo, it seems to me, by saying that the Constitution, by requiring "just compensation", expresses a preference for objective valuation. (Even the dissenters in Kelo would concede that the government has an absolute right to kick you out of your house and pay you the value of it so long as your property is being taken for a public purpose.)

But just because you wouldn't mind being kicked out of your house and being paid more than it is worth doesn't mean everyone feels that way. There are people whose families have lived on the same property for 200 years. There are immigrants who have had the opportunity to move out but feel attached to the first house they moved into when they came to this country. There are people who enjoy the special view they have on their property and which they cannot find anywhere else.

In all these cases, people value their homes to a greater extent than the market does. And the question that the Kelo dissenters pose is should the government be able to take that away from you just to give your property to someone else? And with all respect, the fact that you wouldn't mind it doesn't mean that others also wouldn't mind, or that the subjective value they place on their property shouldn't be considered.

# posted by

Dilan : 2:55 PM

Slow down everybody. Nobody really wants to take Granny's house away. Or rather the only people who want to are the sort of economists who are more inclined to hang out with Republicans then Democrats. The issue is how we prevent it. The dissenting solution is that we impose a public use requirement that any competent lawyer will be able to get around. All you do is have the government initially take title to the land and then either lease or sell to the private party. The better solution is force the government to pay premium value for land. That, combined with the broad value of not doing this except in exceptional cases, is likely to do more for granny;s house than public use.

# posted by

Mark Graber : 4:17 PM

The public use requirement has the virtue of being what the Constitution actually mandates, but paying a premium, TOO, would be nice. However, even if it's inadequate, we are obliged to at a minimum comply with the Constitution.

Even if a proficient lawyer could invent some sophistry to get around it.

# posted by

Brett : 4:40 PM

Okay. Simply put, this canard that only "libertarians" were upset at Kelo is patently false. The day it was announced, TalkLeft (blog) and Mike Malloy (rabid anti-Bush liberal talk show host) both spoke against the opinion.

I guess they both have libertarian tendencies, but it isn't quite what comes to mind when one read about the opponents of Kelo on these pages. Likewise, the NAACP wrote a brief in support of Kelo, worrying about effects on minorities. Apparently, not only Justice Thomas worried about this fact.

Overall, Dilan is 100% right. Some people out there actually like their home. It has been in their family for some time. They are raising families and so forth. Maybe, their own parents lived there. They don't always just want more money.

The fact some people don't seem to get this is a wee bit sad. I thought only "they" cared simply about money.

# posted by

Joe : 12:48 AM