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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.

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Federal Government Will Use Eminent Domain to Take 500 Acres of Property for Flight 93 September 11 Memorial:

The federal government has announced its intention to condemn 500 acres of land held by seven property owners in order to use it as part of a memorial for those killed on Flight 93 on September 11 [HT: several VC readers who alerted me to the story]. In this December post written when the use of eminent domain was just under consideration, I explained why this condemnation is clearly constitutional even under the relatively restrictive interpretation of the Takings Clause that I and most other critics of Kelo v. City of New London support:

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 condemnation), 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.

I also argued in that post that the Flight 93 Memorial takings may be justified on policy grounds:

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).

I do have one important caveat to my conclusion on the policy issue. According to news reports, the memorial will be part of a massive 2200 acre national park (including 500 acres of property that will be forcibly acquired by using eminent domain against the seven owners). I suspect that the government could have built a simple, dignified memorial to the Flight 93 victims without using so much land - and therefore without having to undermine property rights to such a great extent. The actual area where the plane crashed is presumably far smaller than 2200 acres, or even 500 acres. A memorial to those who died in the cause of freedom should be built in ways that violate the rights of others as little as possible. However, I am reluctant to state a definitive conclusion on this issue because I have not studied the memorial plans in detail.

UPDATE: Ilya Shapiro of the Cato Institute criticizes the government's "strongarm tactics" in dealing with the seven owners.

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Eminent Domain Battle over Flight 93 Memorial Continues:

CNN has an interesting article describing the ongoing battle over the federal government's plan to use eminent domain to acquire some 500 acres of private property for the construction of a memorial at the site where Flight 93 crashed on September 11, 2001.

I previously wrote about this controversy here and here. As I explained in those posts, I think that these takings are clearly constitutional, even under the relatively narrow interpretation of the Public Use Clause of the Fifth Amendment that I favor. However, I am somewhat skeptical that the government really needs to use 2200 acres of land, including 500 taken by eminent domain, to build an appropriate memorial to the fallen.

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Federal Governments Seeks to Condemn Land for Flight 93 Memorial:

As has been expected for some time, the federal government has filed an action to condemn 276 acres of property in order to build a memorial to those killed on Flight 93 on September 11, 2001.

As I have explained in previous posts (see here and here), I believe that this condemnation is constitutional even under a relatively restrictive interpretation of the Public Use Clause of the Fifth Amendment. After all, the land will be owned and used by the federal government for a public memorial. At the same time, as discussed here, I remain skeptical that the government really needs to condemn such a large area (the memorial site will encompass a total of 2200 acres). It seems to me that an appropriate memorial to the heroes of Flight 93 can be built on a significantly smaller area, and with much less infringement on property rights.

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