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Takings: Private Property and the Power of Eminent Domain
If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.
Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?
Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.
Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?
Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.
376 pages, Paperback
First published January 1, 1985
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About the author
Richard A. Epstein
88 books89 followersRichard A. Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at The University of Chicago Law School.
Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.
His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.
His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
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September 23, 2010Takings: Private Property and the Power of Eminent Domain by Richard Epstein (2005)
February 22, 2014
TAKINGS by Dr. Richard A. Epstein is without question one of the most important books of recent history in the field of legal and Constitutional theory as they relate to private property and eminent domain. Epstein systematically destroys the justifications attempted by America's Executive Branch and an overly compliant Supreme Court to defend a century long pattern of un-Constitutional seizures of private property by the Federal government. These takings have included the redistributionist progressive income tax, restrictiveness on the use of private property, restrictive zoning laws and now the massive over-reach of Obamacare, in which Our Dear Leader and his Brownshirts in the Federal bureaucracy presume to inject their control into the healthcare decisions of American citizens and our doctors. All these takings violate the letter and the spirit of the US Constitution, and Epstein shreds them and reveals their perpetrators for the Marxist admirers that they have been and are today. When written, with interesting cases, TAKINGS is Professor Epstein's masterpiece thus far. CDE
November 20, 2019
Distinguished law professor Richard Epstein presents his take on the eminent domain clause of the United States Constitution (". . . nor shall private property be taken for public use without just compensation") in this book. Epstein approaches the question from a Lockean point of view. John Locke posited that the proper purpose of government is to protect citizens from fraud and force, thereby avoiding a Hobbesian nightmare in which the strong prey on the weak, but no more. He therefore examines the common law defining the private rights of individuals, and analogizes from there to what the government legitimately may seek to accomplish in the public realm. What emerges is a tour de force of legal reasoning.
Although this Nation's founders were strongly influenced by Lockean thinking, this book does not present the actual history or original intent of the eminent domain clause, nor does it purport to do so. Rather, Epstein starts from first principles and goes forward from there. That is both the book's strength as well as the source of a potential weakness. Since Epstein does not overly concern himself with the encrusted accumulation of precedent, much of it erroneous from any reasonable perspective of eminent domain, he finds it simple to sweep aside those errors and maintain consistency. At the same time, history is replete with examples of intellectuals who crafted rules for what seemed to them to be ideal societies, only to see the experiment crash, their hubris exposed, and, frequently, innocent people die. Karl Marx and Friedrich Engels, of course, provide the most prominent examples of this tendency, but they are not alone. Of course, no nation has enacted Epstein's proposals, and even if that was to happen the grotesquiries of Marxism and National Socialism would not come to pass, as the classical liberal tradition in which Epstein works is not nearly so vulnerable to such events as others, in that it was established largely for the purpose of avoiding just such disasters. Nevertheless, humility remains appropriate for any governor who might be tempted to engage in social engineering, and that sense of humility is not present here.
Although this Nation's founders were strongly influenced by Lockean thinking, this book does not present the actual history or original intent of the eminent domain clause, nor does it purport to do so. Rather, Epstein starts from first principles and goes forward from there. That is both the book's strength as well as the source of a potential weakness. Since Epstein does not overly concern himself with the encrusted accumulation of precedent, much of it erroneous from any reasonable perspective of eminent domain, he finds it simple to sweep aside those errors and maintain consistency. At the same time, history is replete with examples of intellectuals who crafted rules for what seemed to them to be ideal societies, only to see the experiment crash, their hubris exposed, and, frequently, innocent people die. Karl Marx and Friedrich Engels, of course, provide the most prominent examples of this tendency, but they are not alone. Of course, no nation has enacted Epstein's proposals, and even if that was to happen the grotesquiries of Marxism and National Socialism would not come to pass, as the classical liberal tradition in which Epstein works is not nearly so vulnerable to such events as others, in that it was established largely for the purpose of avoiding just such disasters. Nevertheless, humility remains appropriate for any governor who might be tempted to engage in social engineering, and that sense of humility is not present here.
March 30, 2023
It failed to convince me the New Deal is unconstitutional. Though more robust Takings Clause protections seem justified.
December 20, 2024
After taking Property with Professor Epstein this semester and reading this book, I can report that most government in America is illegal.
October 9, 2008
I know a lot of people that love, or would love, this book. I also know a lot of people who would completely dismiss it. Those who come to the table thinking that each person has an inalienable right to the fruits of their own labor will mightily enjoy some of the conclusions he comes to (namely, that the government has no right to tax us, take our stuff without reimbursement, or do stuff that harms us).
My problem is that I keep getting stuck on that first assumption. It is far from obvious to me that property rights trump every other economic and moral consideration. Sure, respecting property rights is usually best because otherwise people have a reduced incentive to make things. But what about when there is some kind of collective action problem? Respecting property rights does not always make economic sense, and it isn't even always clear what should be the limits of our property in the first place. Stating right from the outset that property rights trump everything else leaves me unsatisfied.
My problem is that I keep getting stuck on that first assumption. It is far from obvious to me that property rights trump every other economic and moral consideration. Sure, respecting property rights is usually best because otherwise people have a reduced incentive to make things. But what about when there is some kind of collective action problem? Respecting property rights does not always make economic sense, and it isn't even always clear what should be the limits of our property in the first place. Stating right from the outset that property rights trump everything else leaves me unsatisfied.
Displaying 1 - 6 of 6 reviews