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Using Eminent Domain to Acquire Land for the Flight 93 Memorial:

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.

OrinKerr:
Fascist!
12.29.2008 5:18pm
A Law Dawg:
I see the reckless apologia here knows no bounds!
12.29.2008 5:37pm
A Law Dawg:
Really though, the Administration should have started condemnation proceedings on September 12, 2001. Did anybody ever expect there NOT to be a memorial?
12.29.2008 5:38pm
Ilya Somin:
Really though, the Administration should have started condemnation proceedings on September 12, 2001. Did anybody ever expect there NOT to be a memorial?

Of course there was going to be a memorial. However, they couldn't know on Sept. 12 exactly which land would be needed, whether the current owners would be willing to sell, and how big the memorial would be. I agree, though, that it shouldn't have taken 7 years (and counting) to build the thing. That's government at work.
12.29.2008 5:46pm
John C (mail):
Just a thought...

Isn't there some controversy regarding the design of the proposed memorial? (I remember Malkin and LGF covering something about "red crescent" design elements etc.) Perhaps the owners aren't "cooperating" because they aren't happy with the proposed design.
12.29.2008 5:49pm
Dilan Esper (mail) (www):
Good post, Ilya. (And good comment, Orin!)
12.29.2008 5:51pm
jab:
You're getting "facts" from Malkin and LGF? LOL
12.29.2008 5:55pm
Milhouse (www):
To me it depends why the owners won't sell. If they want to build their own memorial, with accompanying gift-shop, etc., then so long as they guarantee that entrance to the actual memorial will be free I'd say go for it, and may the spirit of American enterprise be with them.
12.29.2008 5:58pm
Milhouse (www):
jab, can you substantiate your implication that Malkin or LGF get facts wrong more often than such "reliable sources" as the NY Times or Reuters?
12.29.2008 6:00pm
Steven Den Beste (www):
Since I've seen the plan for what the memorial is supposed to look like, with its crescent and star, I'm of the opinion that it would be better to never build the damned thing.

The most important memorial is in our hearts, and using eminent domain to build a memorial to the hijackers is obscene.
12.29.2008 6:03pm
bear (www):
There's a little more to the story though. Specicially, there was the first "appraisal," which was soundly rejected when converted to an offer by the land owners, and then the second "appraisal," which for reasons no one actually knows (but could reasonably be deduced) was never revealed.

There was also a second offer by the families/victims/heros advocacy group, also rejected.

My guess? The second "appraisal" approached a value which would likely have been very attractive to the land owners, and probably approached a value near what the land was actually worth...but was "just too daggone expensive," considering the shame, scorn and invective that could easily be levied on the land owners for their greedy attempts at bilking the poor 9/11 heros and their aggrieved families for attempting to TAKE someone else's property for something which is so clearly a "public use."

Although, I guess in light of the legal "blight" that is the kelo decision, it really doesn't matter much...Not that it mattered much at all before this embarrassment of SCOTUS jurisprudence.

Obviously NAL...but instead...JAFO,

-bear
12.29.2008 6:03pm
Orion (mail):
Hmm...

1. Exactly what land are we talking about? The actual crash site and a road to get to the memorial or are they planning to grab the field next to it and build a Disneyland-style theme park?

2. Are the current owners going to be compensated at fair market value for the land?

3. If the land isn't converted into a memorial what possible use is the land to anyone? Don't tell me the owners plan to graze cattle on the land.

Frankly I would have begun Eminent Domain proceedings the day the final design for the memorial was approved. Let a Federal Court decide compensation and if too much/too little land is being seized. That's the PURPOSE of eminent domain: to put all these questions before a court where the facts can be impartially decided and compensation fairly allocated.
12.29.2008 6:15pm
calmom:
A. The landowner is a quarry company, a corporation. Not as sympathetic as if the land grab was of a family farm in a family for generations. The dispute is over the value of the land. I don't think the landowner should get cheated of the full fair market value because he had the bad luck to have United 93 crash on his property.

B. It's interesting and a comment on the use of eminent domain that the Twin Towers land is not being taken by eminent domain for that memorial. Too expensive or is it's owner too politically powerful?
12.29.2008 6:41pm
Milhouse (www):
Calmom, the site of the NYC World Trade Center was taken by eminent domain 40 years ago, to build the thing in the first place. The Arabs who were displaced moved to Atlantic Ave in Brooklyn.
12.29.2008 7:05pm
Steve:
The WTC site is already owned by the Port Authority of New York and New Jersey, as it was before 9/11.
12.29.2008 7:05pm
Steve in CA (mail):
Just in case anyone is curious, the design is here

There's absolutely nothing there that suggests crescents or stars to me. There's certainly nothing that implies that the government wants to build "a memorial to the hijackers."
12.29.2008 7:48pm
JMB (mail) (www):
I think there should be a memorial built for this once upon a time not so disreputable American endeavor, to a showing of respect, for those private property rights of them that are still striving, to live in peace.
12.29.2008 7:48pm
Steve in CA (mail):
Of course, it's possible that the government is keeping the real, terrorist-memorializing plans secret, in the vault with Obama's real birth certificate.
12.29.2008 7:49pm
Steven Den Beste (www):
Steve in CA, most of the circle is lined with trees. In the middle of the gap of that crescent is the "entry portal", right where the star is on the Islamic flag. And the proposed orientation of it makes it point straight at Mecca.

They've changed the way the model is presented to deemphasize the crescent, but it's still there.
12.29.2008 8:05pm
Steven Den Beste (www):
See this.

I have no problem with people being muslims. And they can put the star-and-crescent on any mosque they want to, or anything else they own. That's fine with me. But the star-and-crescent damned well doesn't belong on, or in, or anywhere near this memorial.
12.29.2008 8:08pm
Steve:
Hilarious. Is the star made out of tin foil?
12.29.2008 8:09pm
Splunge:
Christ, how about just a tasteful statue next to the road with a little written guide on a pedestal? Even in these thin times, I expect the government can purchase the 50 extra square feet of property needed, commission and build the statue in less than 10 months.

This is crazy. Heroic as the Flight 93 folks were -- and I don't deny it -- this was not Iwo Jima or Gettysburg.
12.29.2008 8:12pm
Robert S. Porter (mail) (www):
There seems to be a difference between constitutional and moral. Taking the land from the owners is clearly immoral.

And I must echo Splunge in says that memorial is atrocious in scale and design.
12.29.2008 8:20pm
Josh644 (mail):
Why can't the conspiracy theorists just gaze at the back of the dollar bill, and leave this memorial alone? Seriously, the fricking EYE OF PROVIDENCE! It's a gazillion times creepier than a circle with a gap in it.
12.29.2008 8:25pm
RPT (mail):
"jab, can you substantiate your implication that Malkin or LGF get facts wrong more often than such "reliable sources" as the NY Times or Reuters?"

Is this a serious question? If so, there is no hope.
12.29.2008 8:31pm
Mike 'Ralph' Smith:

The dispute is over the value of the land. I don't think the landowner should get cheated of the full fair market value because he had the bad luck to have United 93 crash on his property.


Agree. And, likewise, the owner should not be able to extort way over fair market value because he had the bad luck to have United 93 crash on his property.
12.29.2008 9:25pm
Edward A. Hoffman (mail):
I just followed Steve in CA's link to the design and Steven Den Beste's link to a site claiming the design is a star and crescent pointed at Mecca. I don't see it.

According to Dictionary.com, a crescent is "a shape resembling a segment of a ring tapering to points at the ends" (my emphasis). The plan for the memorial involves a curved wall that forms perhaps 300 of the 360 degrees it takes to make a circle. The wall is no thicker in the middle than it is at the ends. It has essentially no width, which is a defining characteristic of a crescent.

The design also does not have a star. Although a star could be placed in the gap, even that would not make the design look like a star and crescent since there would still be no crescent.

Finally, even if a star were added in the gap and even if the middle the wall were thickened to make it a crescent, it would be pointed away from Mecca. The arrow toward Mecca on the map (which I will presume is accurate) goes from the non-existent star through the middle of the curved wall. To me, at least, the design would only "point at" something in the opposite direction.
12.29.2008 9:41pm
Brett Bellmore:
Technically speaking, on a sphere, if you're pointing directly away from something, you're also pointing directly towards it; And Mecca is far enough from the crash site that the difference in distance following the great circle in both directions is relatively small.
12.29.2008 9:59pm
loki13 (mail):
Brett,

First, I would like to have the five minutes of my life back for looking at that link and pondering this silly issue.

Second, taking everything that site says as true (which is hard to do) then:

a. The shape is not a crescent.

b. There is no star.

c. If there was a star (which there is not) it would be pointed in the wrong direction.

d. If there was a star (which there is not), and it was in a crescent (which it isn't) and it didn't matter if it is was pointed in the right direction or not, then it *still* isn't pointed right. The overlay they try to show merely shows they are 'roughly parallel'. They aren't. It's like the difference between NW and NNW. And they get this by choosing arbitrary points on the non-crescent.

So what we have is the following:

If you pretend that anything between a point and a full circle is a crescent (which would ba surprise to most monument designers, esp. the ones on the National Mall), and you make up the fact that there is a star when there isn't, and then look in the wrong direction, you might come to an approximation (not an exact, or particularly close, but somewhat close, in the 'sun sorta rises due east if you like in Maine in December' sorta way) of where Mecca is.

I guess I don't have enough tinfoil in my house to fully understand the perfidy of the planning process here.
12.29.2008 10:08pm
Gaius Obvious (mail):
Why 2,200 acres for a simple memorial (1,500 core acres plus 500 acres of easement)? To understand the size of the request, the entirety of this map is what 2,200 acres looks like. 2,200 acres seems incredibly excessive. For comparison, how many acres does the WWII memorial in DC cover?
12.29.2008 10:10pm
calmom:
Yes, I should have remembered that the Port Authority owned the land on which the Twin Towers sat. The fact that eminent domain procedures weren't needed hasn't sped up the memorial though. And the government will still turn the area into a profit generating enterprise with a memorial on it. Rather than a space devoted entirely to memorial. I know, it's much more valuable than some old quarry in Pennsylvania.
12.29.2008 10:10pm
A Law Dawg:
Mr. Sarcastro, please answer the Red courtesy phone.
12.29.2008 10:14pm
fortyninerdweet (mail):
I find it even more sinister that the "star and crescent" aiming crosshairs of the proposed memorial are pointed directly at either Binghamton, NY, or conversely at Chatanooga, TN, depending upon which way one is "sighting" the aiming device. But that could just be me.

I agree the incident deserves a significant memorial, more than just a pedestal by the side of the road, as it were. The NPS plans do seem a little over-the-top, but there are many other factors here not covered by commenters that bear on the issue, so for this blog's purposes that should be off topic.

As to eminent domain itself, once a need were established this would seem to be a classic case crying for government action. As much as it pains me to say it. Thanks to Ilya for the post.
12.29.2008 10:17pm
Edward A. Hoffman (mail):
Brett Bellmore wrote:
Technically speaking, on a sphere, if you're pointing directly away from something, you're also pointing directly towards it; And Mecca is far enough from the crash site that the difference in distance following the great circle in both directions is relatively small.
I agree with your first point but not your second.

According to the Infoplease Distance Calculator, the distance headed (roughly) east from the crash site to Mecca is 6,657.3 miles. Since the earth is 24,901.6 miles in circumference, the distance in the opposite direction is 18,244.3 miles — 174% further. I don't think many people would consider that a "relatively small" difference.

Besides, as loki13 has pointed out, the line from the center of the gap through the opposite side of the wall does not come particularly close to Mecca. I wish I had noticed that additional flaw before I posted my prior comment.
12.29.2008 10:25pm
Neo (mail):
This must be a first.

The land where Flight 93 crashed is a reclaimed mine site. You know (CK pun), one of those places that the environmentalists have been telling us that are forever spoiled.

Now, we're told, it's a place worth fighting for.
12.29.2008 11:33pm
Guest12345:
The overlay they try to show merely shows they are 'roughly parallel'. They aren't. It's like the difference between NW and NNW.


The difference between NW and NNW is 22.5 degrees. The difference between 55.19 and 53.5 degrees is about 1.7 degrees. I suppose if you were really, really hard of seeing, those are exactly the same.

$50 million? 2200 acres? No way. Put up a plaque on the Mall in DC and call it good.
12.29.2008 11:34pm
Avatar (mail):
Frankly, reading that site gave me more willies than hearing about the original design. "Sacred ground"? Wait, no, I'm sorry, it's "Sacred Ground". Okay, okay, I'm agnostic, and so my view of that sort of thing is a little jaundiced, but doesn't it worry you a little that someone could call it that seriously?

I'd buy "Hallowed". That's a traditional term of respect for a field where the bones of heroes lie.
12.29.2008 11:36pm
Matthew in Austin:

Splunge: "Christ, how about just a tasteful statue next to the road with a little written guide on a pedestal?"

Gaius Obvious: "Why 2,200 acres for a simple memorial..."

The larger the memorial, the more people pay attention to what is being memorialized. The more people pay attention, the more likely they are to have a factual understanding of the events of that day. And the more factual their understanding, the less likely they are to pay attention to Steven Den Beste and his ilk. Big memorials serve as big educators.
12.29.2008 11:51pm
Milhouse (www):
I don't understand why people are saying that it points in the opposite direction. They seem to assume that one would be facing out of the crescent, rather than into it; as the article SDB linked to says, it's a giant mihrab. And a mistake of 1.7 degrees is negligible; a person praying can't guarantee better precision than that.
12.30.2008 12:21am
Guest12345:
Big memorials serve as big educators.


Like the Clansman Monument in Washington D.C.?
12.30.2008 12:29am
David M. Nieporent (www):
I don't understand why people are saying that it points in the opposite direction. They seem to assume that one would be facing out of the crescent, rather than into it;
I'm not sure you're clear on the derivation of the word "point." The circumference of a semicircle doesn't "point" anywhere.
as the article SDB linked to says, it's a giant mihrab. And a mistake of 1.7 degrees is negligible; a person praying can't guarantee better precision than that.
And as Loki says, it isn't even a crescent, doesn't have the star that SDB fantasizes that he sees, doesn't point anywhere, and what on earth does the error in a person praying have to do with the error in construction?

Yes, if a person were praying, he couldn't/wouldn't get closer than that. But if one were building a building, one could/would get closer than that.
12.30.2008 1:41am
Idaho Spud (mail):
What is being memorialized, the lives of innocent victims who fought back against the highjackers or a bunch of feel good bureaucrats obsessed with spending taxpayers dollars glorifying their own compassion. Once constructed, an interpretive center to explain how we should all feel?

My personal experience is when I have found a small marker designating an historical event/place it has led to my consideration and introspection of the event. When I have experienced a government memorial invariably I revolt at being led to have specific feelings and prefabricated emotions.

Ultimately, such a monument must also take into account that some of the lives were also the terrorists therefore more interpretation. No doubt a crescent and star would have to be incorporated into the design to balance any Christian reference.

The "servant" of the people, government, takes what it wants. Some "takings" are less subtle than others. In any case, morally wrong.
12.30.2008 5:02am
Brett Bellmore:

The circumference of a semicircle doesn't "point" anywhere.


At least come up with good arguments: The circumference of a CIRCLE doesn't have any prefered directions, the same can't be said of a semi-circle, or you couldn't tell the difference between a smile and a frown.

My personal opinion is that it's lunacy to make the memorial this large, a tasteful plaque would have been better. But the best memorial would have been not redoubling efforts to make sure that passengers are defenseless.
12.30.2008 7:41am
wm13:
Count me as one who doesn't find the New York Times more reliable than Michelle Malkin. Is there anyone who doesn't share the political predilections of the Times's reporters and editors but who considers it reliable?
12.30.2008 8:58am
loki13 (mail):
wm13,

Your statement is absurd on its face. Other than the usual "New York Times" hating, what does it mean? How about this-

I find the Wall Street Journal more reliable than Glenn Greenwald.

I find the New York Times more reliable than Michelle Malkin.

(Both statements exclude the op-ed pages)

I can make both statements with a straight face, and without a partisan bias, for a simple reason- both the WSJ and the NYT are professional organizations that have fact checkers and journalistic standards. There has long been an argument that there are unconscious or conscious biases among the reporters and editors that influence the topics they cover (why do sports readers care about the Augusta GC's men-only policies so dang much) or their placement. Heck, you could even go with wourd choice (homicide bomber or suicide bomber, Myanmar or Burma). And it's possible for an occasional reporter to go off the reservation (see Glass for example). Bu on a daily basis they publish vast amounts of facts, they have a need to get those facts rights, and they publish retractions when they are incorrect.

Compare that to a single individual, no matter how conscientious they are. I will not speak to the qualifications of either Malkin or Greenwald or any other other sole blogger you care to name, but to say they are more 'reliable' than one of the world's major newspapers is the type of stupidity I rarely find on this board.

Debate the merits of cnn or fox all you want. Debate the WSJ and NYT. Debate mother jones or the national review. But that's little too kool-aidy for me.
12.30.2008 10:50am
Jimmy S:
as the article SDB linked to says, it's a giant mihrab.


So add a sign that says "This Way To The A******s Who Did This" and call it good.
12.30.2008 12:06pm
David M. Nieporent (www):
At least come up with good arguments: The circumference of a CIRCLE doesn't have any prefered directions, the same can't be said of a semi-circle, or you couldn't tell the difference between a smile and a frown.
I didn't say that it couldn't have distinct orientations; I said that it didn't "point" anywhere. A smile does not "point" down, and a frown does not "point" up.

The funny thing is, doing a little research I see that the whole "crescent" thing is a red herring thrown in by nuts purely to be inflammatory. A "mihrab" is not a crescent, so there's no reason why, if this were a mihrab, it would be.
12.30.2008 12:19pm
ak47pundit (www):
Edward A. Hoffman:

The original design, called the Crescent of Embrace had a copse of trees that looked like a star and tapered crescent formation, which caused the initial controversey.

The design was then changed to a circle and renamed the Circle of Embrace in response, with the copse of trees blended into the end.

The real controversy should be that this memorial will cost at least $57 million and not be ready until 2011.
12.30.2008 12:32pm
wm13:
loki13: The New York Times, as you know, produces vast quantities of prose, most of which is produced by people who don't know anything about the topics they are writing about, or care much either. When you produce in that quantity under those conditions, you make huge numbers of errors. When the topic is of political concern, those errors are compounded by political bias. As a result, the New York Times is not very reliable. Check it out for yourself: when the New York Times writes about something you know something about, such as (in my case), tax-exempt bond financing, or colonial history, how accurate is it?

In contrast, the average blog has a very narrow focus and a proprietor who only writes about things he or she is obsessively interested in. Although this doesn't eliminate the bias problem, it does eliminate the problems of indifference and ignorance which plague newspapers. So I have every reason to believe that Michelle Malkin is just as accurate as the New York Times. Obviously it would be silly to claim that she is as comprehensive in her coverage.
12.30.2008 12:36pm
loki13 (mail):
wm13,

Again, let's be clear what we're really talking about. You said that Michelle Malkin is more reliable than the New York Times. You now refine that to say that she is "just as accurate" although "not as comprehensive".

What, exactly, is Michelle Malkin (or Glenn Greenwald) an expert in? They can critique, but they don't really do much reporting. I believe Malkin is a lawyer (I could be wrong), and she has opinion on political matters- and so do many people. But she isn't actually getting most of her information first-hand. As for her accuracy- well, she isn't so good with the retractions, and she doesn't have millions of eyeballs perusing every single line looking for mistakes (like, say, the NYT or the WSJ has).

Again, your original statement is absurd (Malkin is more reliable than the NYT). Your revised statement (Malkin is just as accurate as the NYT) is just as absurd. Malkin (and Greenwald, and many bloogers) provide criticisms which help keep the NYT and WSJ and others on the their toes, which is nice, and they provide opinions, but when they make mistakes (which is frequent) they just move on and provide yet another opinion with no accountability.

If you bother taking the time to use TEH google, you will find a litany of the times Malkin has been wildly, egregiously wrong, times that she hasn't bothered to make a retraction. There's no problem with that- she's paid for her outrageous opinions, not for her factual reporting. But to equate her with the NYT is the kind of conservative attack on credentials that is marginalizing the GOP. Hold up the WSJ to the NYT- not Malkin.
12.30.2008 1:05pm
wm13:
loki13: I guess we just disagree. But hey, it's a free country, and you can keep getting your news and views from the New York Times, if that's what pleases you, for as long as it stays in business.
12.30.2008 1:27pm
fortyninerdweet (mail):
The issue re: NYT v. MM boils down to bias. MM admits hers, the NYT doesn't. I'd prefer to rely on an admittedly biased person over a denying bigoted entity every day. And so will most thinking individuals. Thats why MM will likely outlast the NYT by a couple of decades. Imo. But that could just be me.
12.30.2008 1:52pm
bowman:
So someone commits an act of terrorism on my property and that gives the US government the right to permanently confiscate my property?

I thought the point of government was to protect me from terrorists, not to further victimize me.
12.31.2008 1:48am
Orion (mail):
"Confiscate" means, "give you 5 minutes to pack and a boot in the rear if you not out by then." Eminent domain is a bit more elegant and you actually get not only paid for the confiscation, you get a legal process to challenge either the taking or the price the State sets for the land it is taking. It's not ideal but at least you get your day in court.
12.31.2008 3:18pm

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