The federal government has 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 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 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 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 this article).
I do have one important caveat to my conclusion on the policy issue. According to 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 using eminent domain against 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. A memorial to those who died in the cause of freedom should be built in ways that violate the rights of others as little as possible. However, I am reluctant to state a definitive conclusion on this issue because I have not studied the memorial plans in detail.
UPDATE: Ilya Shapiro of the Cato Institute criticizes the government's "strongarm tactics" in dealing with the seven owners.
Related Posts (on one page):
- Federal Governments Seeks to Condemn Land for Flight 93 Memorial:
- Eminent Domain Battle over Flight 93 Memorial Continues:
- Federal Government Will Use Eminent Domain to Take 500 Acres of Property for Flight 93 September 11 Memorial:
- Using Eminent Domain to Acquire Land for the Flight 93 Memorial:
You don't need 2200 acres for a buffer zone. A much smaller area would likely be enough.
What might be ingenious for a private landowner -- such as the extraordinarily long entrance road at Disney World, which is no coincidence but instead is a substantial factor in Disney's ability to collect five bucks for a watered-down soda -- seems improper for a government that must forcibly grab another's property to arrange its wishes.
2200 acres equates to at most about one mile in all directions. Not unreasonable for providing some solitude.
Use can also be controlled by zoning.
The Federal government has zoning powers?
It was a tragedy. Its hard for the families. But what edifying lesson will you take your kids there to learn? THere is no rhyme or reason to this memorial.
It was an atrocity. Not a tragedy.
It's a memorial to the American spirit, where the unarmed passengers rose to fight the hijackers.
There's a fine lesson there.
As far as the federal government is concerned, it's omnipotent.
Indeed, had they not intervened this particular aircraft would likely have reached a readily-accessible piece of federal government property, greatly simplifying the memorial issue.
I suppose one could argue that every square inch of the earth is covered with particles of somebody's remains and therefore nothing special need be done here, but others might disagree.
There's really nothing to see there.
I think it's related to more jobs are good wages in the ever expanding federal bureaucracy.
2200 acres! Holy Mackerel! How much food could you grow on that land, or animals could graze? What a colossal waste.
2,200 acres may seem like a lot, but how big is it compared to other national parks. We know the owners of 1,700 acres have agreed to sell their land. Where are the other 500 acres? If they are very close the crash site, I can see why it is being done. Also, there is something to be said for a contiguous park.
All in all, I am not outraged. So long as there is fair compensation (I think it should be fair market plus a little), I have no issues.
2,200 acres is not that much. Other national parks: Mesa Verde, almost 52,000 acres; Grand Canyon, over 1 million acres; Gettysburg, almost 6,000 acres. It is only four square miles. I think we can give the memorial something so small without violating anyone's sensibilities.
Could The Federal Government perhaps make an agreement and cooperate with the local authorities who do have the power? Or is the only permissible mode of operation of the Federal Government as a steamroller?
<blockquote>2200 acres equates to at most about one mile in all directions.</blockquote>
A square mile is 640 acres.
Wouldn't be much point to having the memorial there if it didn't even include the crash site.
Also, it hardly sounds like the condemnation is forcing lots of people out of there homes, except for the one family operating a scrap yard (maybe not the best aestethics for a memorial).
Oh the federal injustice and Supreme Court incompetence lives on...
In any taking there is a series of last stand owners who are holding out. ED is only used when reasonable and fair offers are refused.
To always accuse the government without seeing what was offered and was was asked - I'm sure these parcel owners asked for a larger share of the Federal Treasury than they were entitled too.
Some claim offers weren't even made yet.
Seriously, why a National Park for a memorial for this? I don't think memorials fall into the same category as schools, roads, bridges, etc.
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
Where is the authority for the Federal government to "purchase" the land for other uses other than "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings?" Has the legislature of the State of Pennsylvania?
Oh, yeah. It falls under the regulation of inter-state commerce.
And the war against owrselves continue. Another victory to the terrorists.
So the project is based on creating "more economic value?"
Hmmmm.
Size of the project should not be the point of discussion. I hear this a lot when projects are proposed. There is total agreement that a project is necessary and very important. Then, the price or size or scope is noticed. Then, all the support drops and individuals start mumbled discussions about who's idea this was.
2200 acres is not a large land grab for this project. Roadway improvements, buffer zones, amenities, the size of the debris field, it all adds up. Plus, there are probably several properties that had to be purchased entirely rather than in part because the needed land would have isolated the remaining plot.
Size is not the issue here.
The idea that the rights of the individual should be subordinate to the interests of the state has a name: it's called "fascism".
Other national parks are larger than the county in which the crash occurred. Therefore, we should take the whole county. It would cost far less than the $3.4 Trillion the fed gov will spend next year and we could employ lots of people tearing down houses and building new ones somewhere else.
Necessity (how much land to take for the project is typically determined by the condemnor, and is subject to no judicial review (federal and pre-1976 California), or to very limited review for fraud, bad faith oe abuse of dicretion by the condemnor (typical), or to fairly liberal review (Florida).
Excess condemnation occurs when the condemnor takes land in excess to what it plans to use for the public purpose. (Cincinnati v. Vester). This is usually a constitutional no-no, except in the case of useless remnants in partial takings. The California Supreme Court expanded the remnant rule in 1968 to include "economic remnnants" but the legislature limited that doctrine (Cal Code Civ Proc Sec 1240.410(c)). However, there is an archaic doctrine, something called protective use -- e.g., the plaza and landscaping surrounding a courthouse -- which is today deemed a part of the primary public use.
If you are into this stuff, there is a 1917 book by a guy named Cushman, entitled Excess Condemnation. It's a good treatise but a bit outdated.
Since this is a federal condemnation, there would be no review for necessity (Bragg v. Weaver). Federal courts say that the decision how much land to take for a public project5 is the condemnor's. Period.
But query whether the feds are actually taking excess land but claiming the taking to be within the scope of the necessity doctrine. There is much judicial confusion on this point. However, it's a good exam question and it offers good prospects for Pennsylvania condemnation lawyers.
There are things which the government should not do, because they are unconstitutional.
There are also things which the government should not do, even though the constitution permits them. If the law says that I can come into your house and eat all the food in your refrigerator without your permission, it's still wrong for me to do so.
There's no conflict here. Just because the constitution permits eminent domain does not mean that all possible exercises of that authority are justified and moral.
I think that is the key point. I have no problem with the government potentially condemning some land for this memorial as that is a legitimate public use and it has to be that specific land for it to work. I do have a problem with the government condeming more land than is needed and with them not negotiating with the owners in good faith before condmening the land.
That is not the Consitutional standard. A memorial is not a needful building. Certainly not in the class of "Erection of Forts, Magazines, Arsenals, dock-Yards."
Well, at least let that be worked out through the citizens of Penn. legislature. If the Leg. approves I guess that it is deemed necessary. If they do not ....
Does anyone here thinks that the Federal government had the powers to, for example, confiscate weapons if there was no 2nd amendment? Does the Federal government have the power to force a sale without getting approval of the State's legislature? For any purposes?
2,200 acres for a plaque.
This whole thing has become absurd. It would be funny if it wasn't so tragic.
I feel for the victims, believe me. I lost friends and high school classmates in the World Trade Center (I grew up in NYC and went high school in Manhattan). I have many work colleagues who were in the vicinity at the moment it happened, and they still suffer from this.
But, enough is enough. I think an understated, non-exaggerated, discrete, dignified plaque would be perfectly adequate, in a spot near the road, that doesn't even have to be at the exact spot.
Until very recently no one believed the Federal government had the power to force a bankruptcy settlement that blatantly violates the law.
But apparently it does.
Always ready to stop EVERYTHING!
1. Is it a good idea in this modern era to have a memorial to the people of Flight 93?
If you don't think so, I am sorry for you. Those people CHOSE TO DIE to stop the terrorists. Everything we know about what happened shows that they KNEW what they were doing. That they KNEW what the outcome was going to be and still did it.
2. What I want to know is why it has taken this long? If the land owners price was REASONABLE all they would have to do is publish it and the government would be forced to pay. IF it isn't reasonable then the Feds are correct to use ED.
3. The Memorial should cover the entire debrie field.
Get this built. Get it built RIGHT.
Remember their example every time you fly. I do.
Silly me. I always thought the whole point about rights is that you don't violate them.
I agree with the sentiments of Gabriel McCall here. The 9/11 attacks succeeded beyond what were probably the intentions of the terrorists, in further enabling pols and bureaucrats to undermine our traditions of limited government and individual liberty. The Flight 93 memorial is just a small example in comparison with the assaults on the Bill of Rights and the bleeding of American blood and treasure in open-ended wars anywhere and everywhere. But one could always claim these latter impositions were "necessary" to keep us safe, even if they are probably making us less safe. Where's the "necessity" of compounding the damage done by a plane crash with ripping off hundreds of acres of people's property to build another park in the middle of nowhere (about 20 miles from Johnstown PA where I live) that will be a continuous tax drain for generations?
Does anybody know if "just compensation" includes compensating and enhanced value because the land is the crash site?
Spoken like someone who has never, to date, experienced eminent domain. My grandfather lost his home, ostensibly for flood control. Guess what? It became a public housing project. I know a family who lost their warehouse to eminent domain.
They hate us for our freedoms" Some shout, while we lose those very freedoms.
Our gvoernment is doing more damage to us than any cave duelling, former CIA muhajadeen.
Sorry, but the governemnt violates rights all the time and unless you are an anarchist you think it is fine for the government to violate some rights some of the time. The whole point of government is that it is a morally sanctioned way for society to violate people's rights in an organized and consistent manner for the greater good. Even non-anarchist libertatians think it is ok for the government to violate people's right to move about freely if they are convicted of murder for instance.
The trick is finding the degree to which we think it is ok to violate some rights on balance with the need for a just and orderly society. Most people, and probably some if not most libertarians, think that there are legit uses of eminent domain. The problem is that many governmental uses of it have strayed far from what most people would consider legit, with takings for private development being the best example of that.
Agreed on that!
Interesting theory. Most of us, I think, would not see incarceration as a violation of a murderer's rights. Rather, the murderer forfeited rights through his or her actions. What did the property owners in Shanksville PA do, to forfeit their property rights?
I'd like to know what the moral difference is between a socialist thug like Chavez who confiscates oil companies and the Feds confiscating property. There's no difference in the means: both use the government's police power against innocent individuals. There's no difference in the ends: both seize property by force. And there's no difference in the moral justification: both claim that the confiscations serve the "public interest."
Yet Again
It would be nice to go with your absolute certainty. But I live in the real world where it is neccessary for government to use ED to get any road, school, or just about anything else built. Does government abuse ED. Hell yes. But your stance of NEVER having ED used is totally unworkable and I believe you know it.
You may not believe that it right to use ED in this case so speak out against it. But many people have no problem.
Yes once again does government abuse ED. YES!!
Just because government abuses ED doesn't mean that ED is always invalid.
If you are an absolutist that ED should ever be used. Please answer the question how is the government going to build the roads, schools, etc that need to be built. Or do you believe that government should do none of these things?
If you do what planet do you live on? Because that is never going to happen on earth.
As they were originally built, and as many are to this day: by private individuals and companies who deal with each other by contract and mutual consent.
No one here has done the first.
Some have doen the second.
But you forgot (in your straw man argument) to talk about the third. You know the ones I called absolutist!
The one who say that there is no ligitmate ED.
Wait they don't actually say it. They never do. They just question any ED no matter what it is. You know them by their examples.
In this whole account there is an elephant in the room.
HOW MUCH DID THE HOLDOUTS WANT?
ED has two tests.
1. Is the project reasonable for Government to do?
A memorial is something that governments have always done. So on it's face it is reasonable.
2. Is the government offering just compensation to people that are being displaced. Another way to ask this is are the holdouts demanding far more then their land is worth because the government wants it?
Unless we can answer 2 with facts. There is no way to tell if the ED is correct or being abused.
I would gowever argue that just compensation varies based on factors besides the land's current use.
What would be the value of a private memorial instead of public, as an example?
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.