capitalism

144 English Civil Wars
force the transfer of title. In condemnation cases, private
owners possessed the right to be notified of the taking and
to respond or object to government evidence regarding the
property’s value. Whether property was condemned or
transferred voluntarily, each private owner retained the
right to just compensation.
In some situations, a government, whether state, local,
or federal, has taken actions that clearly infringe the rights
of a property owner to use and enjoy that property. If the
government offers no compensation for this interference,
property owners could sue the government for what was
known as an “inverse condemnation” in order to compel the
government to pay fair compensation for its taking.
When a government regulates and thus interferes with
the use, development, and enjoyment of private property,
courts have only rarely required it to pay owners for the
losses that result from such regulatory (as opposed to physical)
takings. Such takings often occur as a result of environmental,
historic preservation, and zoning regulations.
Courts are more likely to order compensation for a regulatory
taking if the regulation has reduced the value of the
property to near zero. Such a regulation would be considered
to constitute a full, as opposed to a partial, taking. An
example of the Supreme Court’s reasoning in a case involving
a regulatory taking can be found in the 1992 case of
Lucas v. South Carolina Coastal Council. However, most
regulatory takings are uncompensated, which means that
private owners must bear almost all the costs of the regulatory
action that, presumably, benefit many.
Granting any government the power to take private
property for any use, even with compensation, is deeply
problematic. The reasons are numerous. First, private
property is an extremely effective bulwark against government
tyranny. If politically powerful individuals can
legally take property for public use and if the politically
powerful can determine what uses are “public,” then we
can expect these interpretations to be quite broad. It is
predictable that the politically weak will be more likely
targets of eminent-domain actions than will the politically
well connected.
This notion was particularly true following the Court’s
5–4 decision in Kelo v. City of New London, that government
entities possessed the authority to transfer land holdings
from one private owner to another if it were thought
that the transfer would further economic development.
Justice Sandra Day O’Connor recognized this problem in
her dissenting opinion to the case:
The beneficiaries [of eminent domain] are likely to be
those citizens with disproportionate influence and power in
the political process, including large corporations and
development firms. As for the victims, the government
now has license to transfer property from those with fewer
resources to those with more. The Founders cannot have
intended this perverse result.
Justice O’Connor is surely right that the Founding
Fathers did not intend government to have the legal power
to take property from one private citizen and give it to
another for the latter’s enrichment, as was the case in Kelo.
The restrictions of the Takings Clause, and similar restrictions
in state constitutions, are evidence of attempts by the
Framers and their successors to limit such redistributive
actions.
Second, eminent-domain powers make the tenure of private
citizens in their own property insecure and, therefore,
less valuable. Third, government officials who pay “just”
compensation are unable to take the subjective value of private
property into account. As a result, private owners may
be forced to transfer property at a price far below that
which the owner would accept in a voluntary exchange.
Given that American courts have traditionally been
extremely deferential to legislatures when determining
whether a use is public, governments now possess expansive
powers to transfer property from the private to the public
domain or, recently, from one private owner to
another—powers that threaten individual liberty.
See also Private Property; Regulation; Rent Seeking; Transportation
Further Readings
DeLong, James V. Property Matters: How Property Rights Are
under Assault—and Why You Should Care. Albany: State
University of New York Press, 1993.
Epstein, Richard A. Takings: Private Property and the Power of
Eminent Domain. Cambridge, MA: Harvard University Press,
1985.
Pipes, Richard. Property and Freedom: How through the Centuries
Private Ownership Has Promoted Liberty and the Rule of Law.
New York: Knopf, 1999.
Sandefur, Timothy. Cornerstone of Liberty: Property Rights in 21st
Century America. Washington, DC: Cato Institute, 2006.
Siegan, Bernard H. Property and Freedom: The Constitution, the
Courts, and Land-Use Regulation. New Brunswick, NJ:
Transaction, 1997.
ENGLISH CIVIL WARS
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The English Civil Wars had their immediate origins in the
attempts of Charles I to impose elements of the Anglican
liturgy, including use of the Book of Common Prayer, on the
fiercely Calvinist Scottish Church. These attempts to conform
the Scottish Kirk to English practices was naturally
met with fierce resistance by the Scots, who, at a meeting of
a large number of nobles, burgesses, lairds, and ministers
held in Edinburgh in February 1638, endorsed a petition