November 24, 2005
Your Home May Still Be Your Castle
By Steve
Chapman
This should be a happy Thanksgiving for local governments that
want to use their power of eminent domain to promote economic
development. Last June, they won a huge victory when the U.S.
Supreme Court agreed with them that seizing private property for
such purposes does not violate the Constitution.
But that
triumph brings to mind Oscar Wilde's remark: "In this life
there are two great tragedies. One is not getting what one wants,
and the other is getting it. The last is much the worst."
You would
expect that winning in the Supreme Court would mean local and
state governments would have a much easier time using their condemnation
authority in the name of creating jobs and revenue. Instead, they
find they have ignited a rebellion. When the court said the city
council is free to take your property to put up a Mega Mart, a
lot of Americans replied, "Seize this!"
The Supreme
Court decision concerned an effort by the city of New London,
Conn., to demolish private homes, over the objections of the owners,
so a commercial development could be erected in their place. But
five months later, that hasn't happened, and it may never.
The mayor
fears the plan "may not be as viable" as it once was,
investors are leery of the wrath of property-rights advocates,
and the state legislature has asked cities to hold off on such
seizures until it can rewrite the law. Meanwhile, one local owner
says he's optimistic enough to put on a new roof.
Never has
a victory cigar made such a big explosion. By giving cities a
free hand to take property from one private owner and give it
to another, the Supreme Court scared the bejesus out of millions
of taxpaying homeowners.
They took
to heart what Justice Sandra Day O'Connor warned in her dissent:
"The specter of condemnation hangs over all property. Nothing
is to prevent the state from replacing any Motel 6 with a Ritz-Carlton,
any home with a shopping mall, or any farm with a factory."
As fellow dissenter Justice Clarence Thomas lamented, "Though
citizens are safe from the government in their homes, the homes
themselves are not."
The U.S.
Constitution says the government may forcibly acquire your home
or your land only "for public use" and only for a fair
price. The public use requirement traditionally covered things
like highways and railroads, and it also allowed the government
to raze decaying blocks that amounted to a public nuisance. But
in this ruling, the court said, "Private use, public use
-- what's the difference?"
Now, as
long as the government claims that the public will benefit in
some way, it can grab any property it wants and give it to anyone
it chooses. If local officials think they can generate more tax
revenue by kicking you out of your home and turning the lot over
to someone else, the court said, they're entitled to try.
That outcome
didn't sit well with a public that regards a person's home as
his castle. Americans accept many limits on their property rights,
but the idea that they could be arbitrarily deprived of their
houses to accommodate a well-connected developer was too much
to bear.
The most
important sentence in the Supreme Court's decision was the one
saying, "Nothing in our opinion precludes any state from
placing further restrictions on its exercise of the takings power."
That opening quickly sparked a movement to restore the constraints
on government power that the Supreme Court eliminated.
This month,
the U.S. House of Representatives approved a bill to bar state
and local governments from taking property for economic development.
Texas, Ohio, Alabama and Delaware have passed laws aimed at curbing
such seizures. The Institute for Justice, a libertarian public-interest
law firm that challenged the New London project, says it's working
with lawmakers in 38 states on similar legislation.
A strange
coalition has sprung up to lobby for such measures, ranging from
the NAACP to the American Farm Bureau Federation. In the House,
the cause brought together liberal Rep. John Conyers, D-Mich.,
and conservative Rep. Tom DeLay, R-Texas, who normally can't agree
on whether the Pope is Catholic.
For now,
the momentum is on the side of those who favor limiting the use
of eminent domain. The supporters of aggressive, government-sponsored
redevelopment thought they had won the war when the Supreme Court
came down on their side. But it may turn out they just found another
way to lose.
Copyright
2005 Creators Syndicate
