Various readers have asked for my views on the federal government's possible plan to use eminent domain to acquire land for a memorial commemorating the heroes of Flight 93, the plane hijacked on 9/11 that was retaken by the courageous efforts of the passengers, but then crashed in Pennsylvania. Flight 93 families are urging the government to use eminent domain because some of the owners of the needed land have so far refused to sell. It's not yet clear whether the Bush Administration or the incoming Obama Administration will agree.

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 comdemnation), 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.

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).

However, I would need to know more about the proposed memorial to reach a definitive judgment on the policy issues. Not every taking permitted by the Constitution and potentially justified by economic theory is actually a good idea.