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 questions: 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.
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