The erosion of private property rights

TRACKSIDE © by John D’Aloia Jr.

October 11, 2006

In 1607, the first British settlement in America was started in Jamestown, Virginia. Allan C. Brownfield, writing in the August 2006 St. Croix Review, related three elements which ultimately made the colony successful: the cultivation of tobacco which provided a product for the colonists to support themselves (the colonists had come hoping to get rich quick on gold and silver), the application of English concepts of freedom and the English common law, and private property.

The concept of private property was a cornerstone of English rights. "The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement." ---William Pitt, British Prime Minister 1757-61 and 1766-68.

The Kelo eminent domain decision demonstrated how far we have strayed from this concept of law. Government has taken upon itself to become an avenue for legal plunder, using eminent domain to steal land from owners to give to those who are politically favored or promise to increase the coffers of government. The readiness of governments to undertake legal plunder was a subject of Frederic Bastiat in his 1850 pamphlet, The Law. Bastiat provided a means of identifying government sanctioned legal plunder. He wrote: "But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime."

Bastiat’s definition fits the use of eminent domain in the name of economic development to a "T." It is nothing more than a restatement of the 7th Commandment, "Thou Shalt Not Steal." Is this natural law understood by those in government and those who subsist on tax dollars? From the actions of many local governments across the country, and from the organizations that lobby for them in state legislatures, it appears not. In Kansas, the League of Kansas Municipalities, an organization that is funded by the taxpayers of member cities, openly fought the legislative efforts to prevent eminent domain from being used for economic development. This month, the League went on record with a draft 2007 legislative priority statement that reads:

"Eminent domain is a fundamental municipal power. The authority to acquire property through condemnation proceedings is critical for public improvement projects. Further, the use of eminent domain for economic development has long been recognized as a public use of this authority. We support increased flexibility for local governments to use eminent domain for economic development purposes, including blight remediation, without seeking legislative approval."

Note the assertion in the third sentence that the use of eminent domain for economic development has been long recognized. Yes, long recognized and sought by those who want the power to control the property of others and create their own fiefdoms, but not long recognized in constitutional law. Note also that the League wants "blight" to be a rationale for imposing eminent domain. Using eminent domain to remediate "blight" has a sordid history. "Blight" is never defined in the laws. The definition of blight has been, for all practical purposes, in the eye of the beholder. "Blight" is whatever government says it means so that property can be condemned and given to another person with the hope (often vain) that government will have more tax dollars to spend. Some examples on which cities have hung blight designations to clear the way legally to use eminent domain are: not enough parking, cracked sidewalks, yards "too" small, homes have only one bathroom or only two bedrooms, single-car garages, and too many individual property owners in an area. And whose property is often targeted for theft by eminent domain under the guise of economic development or blight remediation? Right on, the poor and the politically unconnected, a situation described in Justice O’Connor’s Kelo dissent.

Equity, justice, and freedom take a hard hit when eminent domain powers are not severely constrained, to be used only for a true public use. LKM, are you listening? Do you care?

See you Trackside.