The clause and its purpose
In the excerpts, “just compensation” is presented as the constitutional price government must pay when it takes private property. Bob Zadek states that eminent domain first comes up in the Bill of Rights, and that the drafters of the Constitution and the Bill of Rights regarded the right to own property as so crucial to economic freedom that the Bill of Rights prevented initially the federal government, and then the states through the 14th Amendment, from taking property for any purpose unless they gave “just compensation.” The Great Founding Fathers (2010)
Trevor Burrus, described by Bob as a research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review, frames the Takings Clause as part of the Framers’ broader concern with how political actors could misuse power. He says the Fifth Amendment implies that private property can be taken if there is a public use and just compensation is given, and that the Framers—James Madison in particular, but pretty much everyone at the Philadelphia convention—had looked at how state governments under the Articles had become dominated by interests that used government to forgive debt. On this account, the clause is a check: if government does not have to pay just compensation, the incentives are there for it to misbehave. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
From public purpose to private transfer
Bob describes the traditional understanding of eminent domain as allowing government to take property for a public purpose so long as it paid—a road, a school, a prison. What happened in Connecticut, he says, was the first time government wanted to take homeowners’ property not to build a highway, prison or school but to give it to another private party to develop high-rises and condos, telling owners to get out and that they would be paid some low value because the area was thought blighted. He calls this the first time government wanted to take property from one person and give it to another because the other would make better use of it. The Great Founding Fathers (2010)
Anthony Sanders agrees that the issue had been brewing for years, with early mid-20th-century Supreme Court cases hinting it could be done, and that city governments did not really get into the business until about the 1980s, when they began taking land and giving it to other private developers to increase property taxes. He says the case they took in New London, Connecticut was pressed to the Supreme Court on the view that enough was enough, and that they lost—but that it changed the culture and atmosphere, leaving city planners and developers on the run because people were awake to the issue. The Great Founding Fathers (2010)
In the later episode, Bob says the Kelo case was decided the wrong way, but that its aftermath—the little yellow house in Connecticut—taught that the Takings Clause cannot be used to transfer property merely from one private actor to another private body that wants the property. He then says that is kind of what rent control does. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Regulatory takings and rent control
Burrus distinguishes the traditional taking—a house in the path of a highway, park or new development, where government says it will take the house, knock it down and pay just compensation—from the regulatory taking, where government puts so many regulations on property that it essentially destroys all economic use, or lets someone such as a tenant occupy the property at a lower rent than the owner would want. He calls the first a pure confiscation and says that is what happened to Susette Kelo—it was a pink house—in the Kelo v. City of New London case, where everyone in the neighborhood had their houses taken and torn down. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Burrus illustrates the regulatory idea by asking what it would mean if government passed a law that anyone could go into your home at any time, or that you had to let someone live in your house: they just took your room, even if you still have the whole house. He acknowledges the difficulty of the complex formulas courts use to weigh regulations together, since some rules raise property values and some lower them, and says there is a really complex Supreme Court jurisprudence on the question. He notes challenges working their way up in the Second Circuit that allege both a regulatory taking—laws diminishing property value in a way that requires just compensation—and an actual taking because the property is being occupied, since someone is forced to rent to someone they do not want to rent to. He says the Second Circuit is getting ready to hear this, that it cruised through the district court, and that the test being pushed at the Supreme Court and elsewhere is that if government makes someone occupy your land, that is just a taking. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Bob characterizes rent control as a wealth transfer from landlords to tenants, and says it is not necessarily a needy tenant but a random tenant at the right place at the right time or with political clout or savvy. He argues it lets government give a benefit to the tenant without raising broad-based taxes, imposing instead a specific tax on the landlord, and that nothing could be more offensive to how we see our relationship to government than making an apartment-building owner bear a wealth transfer to a tenant he has never met just because he chose to own an apartment building. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Burrus makes the same point in terms of cost-bearing: if “we” are supposed to care about the problem, then why make one person bear all the brunt of the cost—the same, he says, with the Endangered Species Act and other things. If it is about we, pay for it; instead, he says, it is about political theater, putting costs onto certain people and not having to raise taxes. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Compensation, conversion rules and litigation
The excerpts connect the compensation question to rules governing rental housing. Burrus describes landlords responding to rent control by converting rental property to condominiums or cooperatives because they cannot maintain the property and are not making money, and lawmakers then passing further laws—what he calls the “There Was an Old Lady Who Swallowed a Fly” pattern of band-aiding the effects of earlier laws. He says New York has one such law requiring 51% of existing tenants to vote, essentially empowering tenants to determine how a landlord can use their property. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
He also says a case called Pactel was to be filed that week at the cert stage at the Supreme Court, involving a San Francisco ordinance—arising from onerous property regulations in San Francisco, including rent control—that says if you turn your apartment building into condominiums you have to offer existing tenants essentially a lifetime rental contract. He says that one is being challenged on similar grounds. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Bob ties the political economy together: government can appear generous by giving a benefit to B while compelling A, the landlord, to give it, so government gets credit from B without having to acquire the value itself through taxes. Since there are more tenants than landlords, he says, that is a sure vote-getter, even though it violates everything we stand for. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021)
Across episodes: the same question, a decade apart
The two episodes treat the same question—when government must pay for what it takes—at different stages. In the earlier episode, Bob and Anthony Sanders discuss the Kelo litigation itself and its cultural aftermath in New London, Connecticut, with Sanders saying they lost but that the atmosphere changed. The Great Founding Fathers (2010) In the later episode, Bob and Trevor Burrus move from the classic eminent domain case to regulatory takings, arguing that rent control is a wealth transfer and discussing live Second Circuit challenges and the Pactel case at the cert stage. Escaping the Statrix: Trevor Burrus’s Rent Control Red Pill (2021) The later treatment thus shifts from a decided case and its aftermath to pending litigation over regulation and occupancy, with Burrus advancing the regulatory-takings framework and the proposed test that forced occupancy is itself a taking.
What the sources do not cover
The excerpts do not state the text or number of the constitutional amendment beyond Bob’s reference to the Bill of Rights and the 14th Amendment, nor the holding or citation of Kelo v. City of New London beyond the participants’ characterizations. They do not identify the New York statute by name, the court that decided Pactel below, or the outcome of the Second Circuit challenges. The excerpts also do not state the founding date of the Cato Institute or the full title of the Cato Supreme Court Review beyond what Bob says in introducing Burrus.