Property Rights Apologia

By Sandefur, Timothy | Regulation, Fall 2008 | Go to article overview

Property Rights Apologia


Sandefur, Timothy, Regulation


Alexandra Klass takes the eminent domain reform movement to task for not emphasizing natural resources takings, whereby extractive industries are given the power to condemn land for private enrichment. ("The Frontier of Eminent Domain," Summer 2008). By focusing only on Kelo-style redevelopment condemnations rather than takings of natural resources, she claims that "legislators and interest groups have clouded the issue by framing it as one solely of government abuse of eminent domain authority."

In fact, the movement for eminent domain reform has chosen to emphasize redevelopment takings for important reasons. As nonprofit organizations with limited funds, groups like the Pacific Legal Foundation and the Institute for Justice must pick their battles, and do so in ways that will most effectively raise the relevant constitutional issues both in the courts and in the eyes of the public. Focusing on mining and timber companies is simply not as effective at drawing the attention of busy news consumers as are stark cases like Kelo v. New London.

In addition, the backlash against eminent domain abuse is led by a coalition of liberals, conservatives, and libertarians, groups who disagree about many things. A narrow focus is essential to keeping that coalition together. Recent ballot initiatives combining eminent domain reform with related, but different, property rights issues demonstrated this fact by chasing away liberal supporters.

More importantly, our choices of where to devote resources are not made entirely on the basis of potential publicity and political reform, but also on the basis of philosophical considerations. The abuse of eminent domain is not a new phenomenon, and Kelo did not come out of the blue. These abuses grew slowly, caused by many factors, among which the leading culprit is the Progressive Era revolution in political philosophy, which placed democracy at the center of American constitutionalism, instead of liberty, and discarded the Founders' concepts of natural rights. One of the leading principles that Progressive intellectuals sought to incorporate into law was the idea that government exists to "adjust" economic and moral forces to accomplish what "the people" want--as opposed to protecting individual rights. The Progressives were so successful in altering the philosophical foundations of American law that they virtually ejected from public discourse the natural rights principles on which the Constitution was based. …

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