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Every
now and then, an issue emerges out of nowhere to
dominate political conversation for months. The
giveaway of the Panama Canal was such an issue in
the 1970s.
The
new hot issue is government’s abuse of the power
of eminent domain. A 5 to 4 decision of the U.S.
Supreme Court on June 23 in Kelo v. New London
prompted a spontaneous outpouring of disbelief, fear
and anger across the country. That decision upheld a
municipality’s taking of private homes for a
development simply because the municipality
concluded that it would bring in higher tax revenues
when the property was turned over to private
businesses.
What
so troubled average Americans is that any person’s
property now can be seized by government simply on
the basis of the government’s assertion that some
vague public purpose will be served by taking the
property from one private owner and then selling or
leasing it to another private person. The asserted
public purpose might be economic development or
merely a better balanced community.
The
widespread negative reaction to the Supreme
Court’s decision in Kelo surprised most Virginia
politicians. After all, a state statute already
permits localities to condemn private property for
any public purpose, which would include economic
development and planning for a “more balanced”
community.
Despite
several high profile battles in Virginia over the
use and abuse of the eminent domain power, there had
been no previous public outcry that would have
warned politicians of what would come when the Kelo
decision was announced.
In
fact, two legislative proposals offered during the
2005 session of the General Assembly to prevent the
very result the Kelo decision allows were given
short shrift. Both would have narrowed the statutory
definition of “public uses” to exclude those
that are predominantly for a private purpose.
Now
Virginia politicians are scrambling to get to the
front of the long column of agitated citizens who
are demanding legislative action to reverse the
effect of the Kelo decision. These politicians, who
had no interest in enacting a statutory fix to the
problem just a few months ago, are suddenly outraged
by the U.S. Supreme Court’s holding.
As
a result of the Kelo decision, the public is
awakening to a greater threat to private ownership
of property than government’s use of the
condemnation power to acquire land for parks or
highways. The public is discovering the insidious
collusion between powerful private developers and
government officials to benefit both by the exercise
of the government’s power of eminent domain in
circumstances that George Mason, Patrick Henry and
other proponents of the Bill of Rights surely
thought would be prohibited by the Takings Clause of
the Fifth Amendment to the U.S. Constitution and
similar provisions in state constitutions.
The
private developers benefit by gaining the right to
obtain property for their developments at a discount
price when government officials use their
condemnation power instead of bargaining with
willing sellers. Government officials benefit in
several ways, not the least of which is an
enhancement of their power. They can seize the
property of their political enemies and transfer it
at a bargain price to their political friends and
campaign contributors.
What
the public response to the Kelo decision has
demonstrated is that Americans have a deep, almost
primal, desire to own property, which Kelo has put
at risk. Politicians shouldn’t expect public
outrage to subside until they enact corrective
legislation.
--
July 11, 2005
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