FEDERAL TRIANGLE: Kelo Consequences
Eminent domain is called "the despotic power," a political power quite apart from a police power. Neither power is mentioned in the Constitution. Police power takes no rights from citizens because what authorities enforce has prior agreement to be the law. Police powers protect rights and do not "take" them, and police do not reduce or enhance property value in law enforcement. However, regulatory exercise of eminent domain does take property rights and usually changes value of the property. Government often acts to provide the public with good results in (financial) loss to a property owner, but no compensation is paid. For example, building is not permitted on a property because of environmental restrictions, resulting in financial loss to the property owner without government taking title to the property.
Now to "public use," a term not enjoying precise definition but described in briefs by University of Chicago professor Richard Epstein to the Supreme Court, distinguished by four categories. The first condemns private property for public use (build a road). The second transfers property from one private party to another for a specific purpose (build a railroad). The third condemns an area, a "blighted neighborhood" (urban renewal), converting nuisance properties to public purpose, a big step away from public use. The fourth way promotes economic development and calls it "public benefit" and equates that to "public use." The bottom line for industry is that, if this trend continues, business will be increasingly subject to "takings" to boost the tax base.
There are two items of legislation that require your attention. First, H.R.3405 is the STOPP Act (Strengthening the Ownership of Private Property Act of 2005) and the other is S.1313 (Protection of Homes, Small Business, and Private Property Act of 2005). It is remarkable that the former bill had 113 cosponsors by October 31 with the likes of liberals Kucinich (OH) and Waters (CA), the middle ground with Davis (VA) and Leach (IA), and conservatives like Paul (TX) and Weldon (PA). Those of us watching politics have not seen this coming together since the nation's founding. The House bill needs change requiring that corrective provisions apply to federal as well as lesser jurisdictions, to assure that abusive state and local practices are captured in definitions, and guarantees that state and local governments know consequences for non-compliance. The last term in both bills assures that governments violating this law will get zero federal funds for any program to which they are otherwise entitled. The Senate bill by Mr. Cornyn (R-TX) also needs perfection, but reconciliation should pass according to consensus of Members in both House and Senate. But take the word of an old hand watching these Devils. It may not happen unless you push your Congressman and Senators to assure limitations on eminent domain. No reader of this journal will be safe at home or work if state or local government has something else in mind for your property in lieu of your business, and if you trust them to do good things, you are grossly uninformed or paying off the politicians down at town hall.
Check out www.ij.org or read text of the legislation at www.thomas.loc.gov. Read the Court decision and briefs; understand the soul of Thomas Jefferson, who cautioned the new nations about eminent domain; and remember words of James Madison: "That alone is a just government which impartially secures to every man whatever is his own."