Justice O’Connor, argues yes: because the property is not causing an “inflicted affirmative harm on society,” it cannot be taken by the government (501). John Locke might also argue yes: Kelo’s …show more content…
To do this, I will first use Gordon Tullock’s explanation of externalities to show that O’Connor’s definition of “affirmative harm” is arbitrary; it treats the same externality, refusing to comply with incomplete agreements, differently when the agreement relates to “affirmative harm” than when it relates to economic development. I will then use Gordon Tullock’s explanation of the “holdout problem” and rent-seeking to show that Locke’s limitation of eminent domain takings to those for purely productive purposes leaves a loophole that allows people to be disproportionally rewarded for marginal labor. These examples show that both O’Connor’s and Locke’s constraints on eminent domain takings should be