There has not been as much sustained public and bipartisan political support to correct bad law and policy as was witnessed with the Supreme Court decision to expand government powers to seize private property under the Constitution's Fifth Amendment, the "takings clause" or eminent domain provision that states, "nor shall private property be taken for public use without just compensation." The 23 JuneKelo vs New Londondecision may be a watershed for many reasons, including the public's desire to restrict judicial activists legislating from the bench and an expression of public sentiment for conservative views to diminish and not expand government's power. The day after the decision, various polls uniformly measured 68% of registered voters favoring legislative limits on government's ability to take private property from owners. This view was shared by varied demographic and partisan groups with support by self-identified Democrats (62%), Independents (74%) and Republicans (70%). This outlook of eminent domain abuse has grown with more than 10,000 filed or threatened condemnations transferring property from one private entity to another in 41 states during the 1998 to 2002 period. Eight state supreme courts now forbid economic development takings and two other states severely restrict it. It is estimated that 3.6 million people in a million households were displaced by federally sponsored urban renewal condemnations from 1950 to 1980 alone, so this festering is not new. Looking at economic development taking is a key to the past and future because there is a critical difference between "public use" and "public benefit" or "public purpose," whichever term government may use to obscure intent.
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 outwww.ij.orgor read text of the legislation atwww.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."
FEDERAL TRIANGLE: Kelo Consequences
December 1, 2005