Undermine Eminent Domain, Protect Liberty

Monday, June 23 marks the third anniversary of the U.S. Supreme Court’s Kelo decision, which undermines property rights and therefore liberty. The good news: That terrible, narrow 5-4 decision sparked a revolution in numerous states. Legislatures and the people, through popular initiative, enacted property rights protections (indeed, though, some need sharper teeth). However, the battles continue. Tick off the greedy politicians and bureaucrats who love that eminent domain. Contribute today to the Institute for Justice and its Castle Coalition, Oregonians in Action, and other such nonprofits that defend, and fight for, our property rights day-in, day-out.

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Posted by at 06:00 | Posted in Measure 37 | 13 Comments |Email This Post Email This Post |Print This Post Print This Post
  • John Fairplay

    As with all government powers, eminent domain is a temptation for those in authority. I have no problem with government competing on the open market for pieces of property it believes it must have for projects. The idea that government can force a sale without the owner’s approval – not to mention a vote of the people being asked to pay for the project – is offensive. The re-assertion of strong private property rights would go a long way toward fixing what’s wrong.

    • dean

      John…5th Amendment to the Constitution, 1791. Are you of all people arguing with the Constitution and divine wisdom of the Founding Fathers?

      Further, the Supreme Court has consistently, since the early 19th century found that States have the ability to create alomost any eminent domain authority they see fit. The Kelo decision was a right-wing media event. Nothing more or less.

      • Rupert in Springfield

        >Further, the Supreme Court has consistently, since the early 19th century found that States have the ability to create alomost any eminent domain authority they see fit.

        Not true.

        Use of eminent domain was restricted almost entirely for large public works projects until fairly recently. It wasn’t until 1954 that the Supremes decided in Berman vs. Parker that private property could be taken for a “public purpose”. In other words the state had to have a specific project or need, not simply a purpose, which in this case was eliminating blight.

        Of course following that regrettable decision “public purpose” was morphed into “public good” and things muddled along.

        Kelo vs. New London is significant for two reasons. First, clearly “public purpose” or “public good” does not encompass the concept of the state simply deciding they want more money, which was the case in Kelo. Second, and perhaps more important, Kelo was not exactly a seizing, it was a transfer from one set of private individuals to a developer. While this had happened in other eminent domain cases before, generally as a consequence of the state deciding not to develop the property it had seized Kelo was different. The express motivation of transfer from the outset was novel in regard to Kelo.

        >The Kelo decision was a right-wing media event. Nothing more or less.

        Not true.

        The history of eminent domain has always been a difficult one. It seems contrary on a basic level to most Americans. However with Kelo, things came to a boil. Few Supreme Court decisions in recent years have been as at odds with public opinion as Kelo was. A raft of state and local constitutional amendments or ordinances were quickly passed over ruling Kelo as the public anticipated, rightly, wide spread abuse of this new found power in the state. In addition some banks have indicated they will not lend to those seeking to develop land seized under Kelo.

  • BestyO

    Yeah. Give more money so OIA’s Day and Hunnicutt can continue to rake in more than $100,000 a year in salaries, while losing political battles.

  • David

    I have never really groked the concept of private property. The idea that some individual can keep me off of some piece or rock just because he says so…. it seems absurd. He can’t keep the birds off of it, or the deer. So why me? I never agreed to this system of “property.” Why am I bound by it? Merely by your force. It is a weak argument, and the sooner we do away with it and its consequent silly materialism, the better off we will all be.

    • Rupert in Springfield

      Well, if you don’t “grok” this concept of private property may I suggest North Korea? I think they are currently the only country that has totally done away with this idea. Since America was founded on the concept of private property, this may not be the place for you.

      If that does not appeal, then may I suggest two other approaches. First, don’t “grok” private property in your own sphere. Let anyone who wants, homeless etc. stay in your residence at will. Set your stereo out on the porch and allow all that would use it to do so as they please. Your car? Leave it unlocked so others may use it when you are not doing so. Second, if private property is meaningless, then surely another’s property has no meaning for you. Advocate for zero taxes to express this disinterest in property.

      • dean

        The key term is “public use.” What is meant by “public use?” Does it mean public “ownership?” Clearly not, or eminent domain could not be used for privately owned utility and rail corridors, as well as privately owned toll roads and 19th century canals. Using eminent domain for an urban renewal project is not materially different than using it for a private utility.

        Case law is thick with use of eminent domain for purposes other than public ownership, or “direct use”. In the early 19th century states passed “mill acts” that allowed private parties to build dams and flood out their neighbors upstream because their mill was in the “public interest,” which was none other than economic development, exactly the same as Kelo. (1832, Boston and Roxbury Mill Corp. v. Newman.)

        In Berman v. Parker (1954) the Supremes found in favor of the District of Columbia taking partly blighted property, knocking down buildings, and then transfering the assembled property to private developers to put a multi-use project together. Urban renewal.

        The “extra step” in Kelo was condeming property that did not meet anyone’s definition of being “blighted.” But then again, there is nothing in the constitution that says anything about restricting takings to blighted property.

        The Kelo decision may have been a step too far politically, but not constitutionally. The reaction to the decision was much ado about nothing new.

        David…I (gulp) agree with Rupert that your position on private property is over the top. I would like to see a relaxation of tresspass laws to allow right of “passage” as long as no damage is done. But no squating. Scotland has that custom and it works beautifully. One can trapse anywhere. A surprisingly good result is that there is not nearly as much need for public land (for trails and recreation) as we have here, so there is less tax burden of managing large public tracts just for people to go for walks in.

        • Joe

          Dean, I am so glad that you will consider it just when the planning commission declares your land to forever be open space and takes it from you at the fair market value of worthless land.

          Then they change their mind and sell it to a development company for a nice profit for the city.

          Of course 2/3 of the planning commission board are also owners of said development company.

          They pocket millions you get squat.

          That is how the real world works.
          Too bad you cannot understand that (or, are you hoping that your neighbor’s land will be the open space and you land will become worth millions? Perhaps you one of the owners of said company?)

  • Rupert in Springfield

    >The Kelo decision may have been a step too far politically, but not constitutionally. The reaction to the decision was much ado about nothing new.

    Not true.

    The key part of the fifth amendment

    “nor shall private property be taken for public use, without just compensation.”

    They key words here are public use. Most people would not have thought a city simply wanting more money, as in Kelo, was a public use. This is why the reaction to the decision was so vigorous. People were outraged as the Supremes had clearly overstepped their bounds. Thus the decision was quickly met with state constitutions amended, ordinances passed, rendering it moot in those areas. The policy of some banks in refusing to lend on takings done under Kelo is especially admirable, and they are to be commended for this.

    I see it as just one in a series of steps indicating people are getting leery of the concept of being ruled by 9 unelected people in black robes making wild pronouncements from a building whose architecture is based on a Greek temple. When these pronouncements seem wildly at odds from any plain reading of the 200 year old scroll from which they are divined, people get cranky. History has not been well served by this method of governance. While some may have cheered Brown vs Board of Education most forget that it was Plessy vs Ferguson that got us into that mess.

    • dean

      Rupert…its not the way you portray it. In the Kelo case the “9 black robes” (or the 5 who voted in favor) simply upheld the long established right of an elected legislative body (the city council) to carry out urban renewal policy within what is allowed under the eminent domain clause of the 5th amendment. They did not say the particular project was a good idea. ECONOMIC DEVELOPMENT, which leads to higher taxes, is the stated goal of all urban renewal, and why shouldn’t a city want to see land value go up so that it can get increased revenues and thus improve services to the community, whther this is a new park, library, or better swept streets?

      How do you see that the Supreme Court “overstepped its bounds”? Whose bounds? Yours? What “wild pronouncement” are you talking about? I thought conservatives were in favor of deferring public policy decisions to the elected branches. The majority did not find some new right in the constitution, and they did not impose any new public policy (i.e. school busing or integration). They simply interpreted the law using the words “public” use” in the context of 200 years of precedent that found that “public use” was not restricted to public ownership and occupation. “Public use” includes fostering economic development by favoring private parties who create it. If people don’t want local governments urban renewing non blighted neighborhoods, then people should elect city councils that won’t pursue such projects. This seems right out of Scalia’s playbook. As you say people were “outraged” at the policy, so they took the steps you describe to prevent urban renewal overreach. I have no problem with that.

      But why blame the court? Blame the city council.

      Joe…my land is already “declared to be open space,” though no zoning is “forever.” My 5 acres is currently zoned for Exclusive Farm Use and I get a nice tax break for farming the land. It is scheduled to be re-zoned for urban uses sometime within the next year, but the legislative body (our local city council) has a perfect right to choose to retain an open space designation on my land IF this is in the PUBLIC INTEREST under Oregon law, generally meaning if it has important natural, scenic, or cultural resources (streams, wetlands, wildlife habitat, historic buildings) or if development would expose people to hazards (landslides, flooding, etc). i expect the council to make its decision in the PUBLIC interest, which may or may not coincide with my PERSONAL interest.

      The type of corruption you cite was typical back where I come from (Chicago,) famous for planning freeway off ramps right where some Alderman had mysterously bought land. But I have seen zero evidence of this being the case here in Oregon. If you have evidence of corruption you should bring it forward. If you are just blowing smoke, then I’ll let it drift downwind and not bother with it.

      And no…I don’t own any development company, though I occasionally do consulting work for developers.

      • Rupert in Springfield

        >Rupert…its not the way you portray it.

        Not True

        Actually the what I describe is quite accurate. I have followed the case for quite some time.

        >How do you see that the Supreme Court “overstepped its bounds”?

        For the reasons stated in my post. I am tired of having to restate everything to you several times because of poor reading ability. Re- Read

        >Whose bounds? Yours?

        Not at all. Again, this is explained quite fully in my post. Re- Read.

        >What “wild pronouncement” are you talking about?

        Beats me, I never talked about wild pronouncements so I have no idea what you are taking issue with here.

        Re- Read.

        >The majority did not find some new right in the constitution, and they did not impose any new public policy

        Of course. The Supreme Court found for the city of New London. That is a government body. Government body’s never have rights. So this is something of a truism.

        They did not impose a new policy, but they did allow a new policy to proceed, that being the one that was established in Kelo, brought by New London.

        >They simply interpreted the law using the words “public” use” in the context of 200 years of precedent that found that “public use” was not restricted to public ownership and occupation. “Public use” includes fostering economic development by favoring private parties who create it.

        Not True.

        Kelo expanded public use as described in the previous post. This is why the case was heard in the first place. Re- Read.

        >But why blame the court? Blame the city council.

        Why not blame both? The council obviously was horribly wrong, as they took peoples homes for a project that went bust. The Supremes, in my opinion, that of four other judges as well as a substantial portion of the population were also wrong in this new interpretation.

        • dean

          Rupert said: “I see it as just one in a series of steps indicating people are getting leery of the concept of being ruled by 9 unelected people in black robes making *wild pronouncements* from a building whose architecture is based on a Greek temple.”

          Then Rupert said: “Beats me, I never talked about *wild pronouncements* so I have no idea what you are taking issue with here”

          Gee whiz Rupert. Re-read your own damn stuff. I’m burned out on you. You can’t even agree with yourself.

          • dean

            And to repeat…How can the SUPREME court overstep its bounds? Since it is the last word on what is and what is not constitutional, there are no bounds for it to overstep.

            Marbury vs. Madison. Case closed.

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