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: