I agree with most of the points Guest-Blogger Nicole Garnett makes in her two posts and in her excellent Michigan Law Review article on which they are based. However, I think her analysis of Chicago's decision to avoid condemning Catholic churches in the 1950s does not prove that takers routinely avoid high subjective value properties such as homes and churches. As I explained in this earlier post analyzing her evidence, the Chicago story proves only that local governments will shy away from condemning property owned by politically powerful groups:

The Catholic Church is well-organized for political mobilization and lobbying and had extensive political connections in Chicago at the time, as Garnett notes. Moreover, as Garnett also points out, Catholics were a majority of Chicago voters at the time, and area Catholics had a very strong commitment to their local parish churches. The fact that a politically powerful church to which the majority of local voters belonged was able to resist condemnation politically does not mean that churches with less political clout will be equally successful. Similarly, the fact that Bill Gates' mansion or George W. Bush's ranch is unlikely to be condemned does not mean homeowners in general are not vulnerable to takings - particularly those who are poor or politically weak. Even the Catholic Church has sometimes been victimized by condemnation in areas where it is less politically influential than it was in 1950s Chicago. For example, numerous Catholic churches were condemned in the notorious 1981 Poletown case, which resulted in the forcible displacment of some 4000 people in order to build a new factory for GM....

Politically influential churches will usually be able to force the government to desist, but the politically weak are unlikely to be so fortunate.

Condemnation of churches and other houses of worship belonging to less influential religious groups are quite common, as shown by the examples cited in the Becket Fund for Religious Liberty amicus brief in the Kelo case. So too are condemnations of homes, another type of property that is often considered to have high subjective value. In the last Part of this forthcoming article, I cite data that, by conservative estimates, some 3.5-4 million people have been expelled from their homes since 1949, by federally funded "urban renewal" condemnations alone - a figure that does not include many state and local takings or pure "economic development" takings such as Poletown. Even if Nicole is right to suggest that "high subjective values may correlate with successful efforts to prevent takings," the correlation is weak enough to allow many such condemnations to go forward.

I am not entirely sure to what extent Nicole and I disagree about this. In her last post, she notes that "political actors are particularly responsive to cohesive, well-organized and narrowly-focused coalitions like those that characterized parish-preservation efforts" a circumstance that helps explain why the Chicago churches were so successful in resisting efforts to condemn them; as she puts it, the Chicago churches' success in avoiding condemnation was "unsurprising." Nicole also points out that "disorganized, politically powerless owners" are far less likely to prevail in the political process, and so may require stronger judicial protection than more powerful political actors such as the Catholic Church in Chicago. I agree with both of these points. Depending on how much emphasis she puts on them, it may turn out that there is no real disagreement between us at all. But no doubt she will set me straight if I have misinterpreted her position.

UPDATE: Nicole comments on this post here. Since she agrees that the ability of the Chicago churches to avoid condemnation is a story "more about political power than subjective value" and also notes that high subjective value does not prevent the condemnation of huge numbers of homes, churches and other similar properties, our remaining disagreements on these issues are too minor to take up space debating here. To my mind, the interesting thing about the attempted condemnation of the politically powerful Catholic churches is not that it failed, but why the normally savvy Daley machine thought they could get away with it in the first place.