Writing in the Washington Times, George Mason University law professor Ilya Somin addresses the issue of “just compensation” required under the Fifth Amendment when eminent domain is used to seize property. Somin notes that courts typically equate “just compensation” with “fair market value.” However, many owners attach a value to their property far above what they might get on the market. Somin calls this the owner’s ‘subjective value” of the property. As an example, if a property has been in the family for generations, there are a lot of memories attached to the property. No amount of money can compensate for that loss. Somin suggests paying a “bonus” for properties with “high subjective value.” While this might be a slight improvement, it ignores the only objective meaning of “just compensation.” Compensation is just when a trade occurs between a willing buyer and a willing seller. When eminent domain is invoked, the seller is not a willing participant in the trade. Consequently, no amount of compensation is just.
A federal judge recently upheld a Seattle law that prohibits landlords from asking about or considering certain criminal convictions when screening tenants. After the law was passed in 2017, a group of landlords sued, claiming that the law violated their right to free speech and their property rights. In his ruling, the judge wrote,
The Ordinance is a reasonable means of achieving the City’s objectives and does not burden substantially more speech than is necessary to achieve them.
According to the judge, it is acceptable for government to “burden” speech–i.e., limit free speech–if it is a “reasonable” means to achieving an objective. Presumably, if the city’s objective was to silence critics, outright censorship would be a “reasonable” means to achieving that objective.
In Ohio, the Silver Lake village council recently modified land-use regulations for properties adjacent to two lakes in its jurisdiction. The new regulation established a setback of thirty-five from a body of water. However, if a healthy tree with a diameter of greater than six inches is removed, the setback becomes seventy-five feet. In short, in Silver Lake, the council, not the owner, will determine how land can be used. One council member praised the ordinance, saying,
What has been presented appears to me to be much less burdensome and to be actually giving land back. I don’t see this as taking from people. I see this as giving property back to people and easing what was an extreme regulation.
The fact is, that land wasn’t the council’s to take, much less give back. But now that the council is “giving property back” it can pat itself on the back.