The New York Times Gets It Partially Right

Over the last few decades, a divided Supreme Court has extended property rights at the expense of community interests by expanding the “takings” concept to include regulatory actions that are “functionally equivalent” to direct appropriation. These might include actions that render the property essentially worthless, undermine an owner’s right to keep it private, or greatly limit its use.

In Koontz v. St. Johns River Water Management District, however, the plaintiffs have asked for a radical redefinition of takings so elastic that even Justice Antonin Scalia, a strong advocate of property rights and of a broad interpretation of the takings law, rose up in protest.

The New York Times, an avid supporter of eminent domain as a "Public Use" (including eminent domain for economic development) came close in a recent opinion.

In attacking the Koontz argument, the New York Times properly recognizes the importance of water resource protection. At the same time, the Times misses the recognized standards of taking in stating that a "divided" Supreme Court has "extended" property rights at the expense of the community interest. To the contrary, the right to own property or to lose it only after payment of Just Compensation for Public Use has been something that has existed in our Constitution and applied to the United States government since 1790’s and the States since 1865 with the passage of the 14th Amendment.