This is a topic that evokes the worst fears of someone who believes the government only exists to secure the rights of it’s people: Eminent domain. Yes, our Founding Fathers did believe in eminent domain but they attempted to limit the power by ascribing that it could only be done “for public use” and with “just compensation”. And by now we all know what the KELO decision has done to that ideal.
I suppose it’s reasonable, that in the interest of a society as a whole, the government should have the ability to designate land that is necessary for public services; utilities such as sewer and power, transit such as trains and roadways, and national parks or wildlife preserves. But the whole ability runs counter to the rather libertarian idealism that we were Founded with. It says that ultimately the government has control over your property because it’s not really yours. The government is just renting it to you (see property tax) and can revoke it at any time according to it’s pleasure. It sticks in my limited government craw, but it is what it is.
The law is written in such a way that it’s just screaming for Court interpretation on every single case; rightly so as there is no overall right and wrong–if you will accept that it’s the abuse of eminent domain (as opposed to the idea of whether there should be eminent domain). And it’s a law that is ripe for abuse. Many state governments have redefined their eminent domain abilities in the wake of KELO and many more should be doing so (I urge you to check your own state’s reaction accordingly). The Court system–unless you like activist judges who write laws from the bench–is supposed to be incapable of doing anything more that interpreting hundreds of years of case law, and a lot of that has sided with the government’s virtually unlimited ability to take away (until KELO which effectively rewrote the 5th Amendment’s “public use”). The state legislators need to step in to clarify law so new case law can be established. We must make sure that they do so as their employers.
And I’m generally all for the wisdom of the sitting judges on a supreme court; whether state or federal, but there’s something to be said about a jury of your peers helping to decide if the government has overstepped itself. That’s notably absent at the highest levels in these cases. It makes me wonder what the Supreme Court was thinking on KELO as most of them are likely well-off property owners. My rule of thumb for any good law is whether you would like it to apply to yourself.
So what is “just compensation”? In an ideal system the government and the property owners work together for a mutually amicable solution. In the system we actually have, it would be nice if the parties involved started off with that thought. I suspect the first notice a property owner gets from the government about the issue is an eviction notice. That’s always a great conversation starter. It would also be nice if the public servants in the government realize that they are just that. No one should enter into the situation with the attitude “I’m going to take away your property and there’s nothing you can do about it”. Even if it might be largely true, it’s still a bad start. I would like to see an honest effort to treat the property owner as a partner in the endeavor. Cut him in for a piece of the action, if you will, and I bet you’ll see a lot of cooperation. It’s just unreasonable to tell a person who brought a property for $100,000 and could sell it for $200,000 on the open market that you’re going to force him to sell it to you for $175,000 and then you’re going to turn around and make $1,000,000 in taxes annually. Give him .5% a year of the tax take. Talk about redistributing wealth!
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
–James Madison
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