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Sliding further from American principles
Posted: 2005-06-24 18:52
3 comment(s)
Author: Phil Gengler
Section: Politics

The Supreme Court dealt a huge blow to another American foundation yesterday, when it expanded the reach of the power of eminent domain. This comes not long after their ruling in Gonzales v. Raich where the court stomped all over states' rights.

This new case, Kelo vs. New London, dealt with the issue of whether a government could, using the power of eminent domain, take property from a private owner and then turn it over to a private developer. More specifically, was such an action considered "public use," as per the Fifth Amendment, which states, in part, "... nor shall private property be taken for public use, without just compensation."

The particular phrasing is very important here. The amendment states "public use," not "public good." The majority opinion in this case, as well as some of the analysis I have heard about the subject, seems to miss this distinction. The "public use" clearly means use by the public, whereas "public good" is much more nebulous; it would include the collection of more tax revenue, as seems to be the point made by the city of New London, and with which the majority agreed.

This public benefit, however, is not "public use." In fact, it is not even an assurance of a public benefit. What the city of New London, and the private developers to whom the land is to be given, is a plan for developing the particular area. The plan is not going to make any tax revenue automatically, and for a time (once the private residences are demolished), the property value of the land will actually decrease. It is not until something new is actually done with the site that the city will be able to charge more. However, there is no assurance that any of this will actually be carried through on. It's entirely possible for the project to be halted, with the existing private homes demolished but no new construction on the site.

As a related example (though not connected to the discussion of eminent domain), there was a plan in Asbury Park, NJ, to revitalize its waterfront with the construction of a 10-story building for luxury condos. Construction got underway, backed by large sums of money from the city, but was abandoned when the developer went bankrupt. To this day, the half-completed building still stands, an eyesore to the town. One Asbury Park official was quoted in the Star-Ledger as saying, "People hate it so much they would pay to blow it up."

The possibility of abandonment is far from the biggest problem I have with this (in fact, most redevelopment plans don't end this way; I merely included the example of Asbury Park to show that plans and promises do not necessarily provide certainty). What I am most outraged about is the blatant assault on private property rights and the huge potential for abuse by corporate entities.

One of the principles of our Constitution is the protection of private property. While it is implicit in the fact that the Constitution was heavily influenced by the ideas of John Locke, it is also explicit in the Fifth Amendment: "nor shall private property be taken for public use, without just compensation." The founders recognized, however, that sometimes absolute private ownership could be a problem, and that sometimes the state could make better use of land or property for the benefits of all its citizens than could a private owner, hence the need for this clause's inclusion.

It is more than just the decision in the case that angers me. In the syllabus preceding the opinions for the case, the court states that "Petitioners' proposal ... that economic development does not qualify as a public use is supported by neither precedent nor logic." I think it is perfectly logical how "public use" is different from public benefit. The property is still going to be privately owned, and in that, it is not "public use." Despite the fact that the hotel, restaurants, shops, and marina that are to be built on the property will be "open to the public" in the same sense as any other restaurant or store, they are still not public property. The owners of the property retain the right to deny access to anyone they want, for whatever reason. That is not public property, nor can it be considered "public use." This hardly defies logic; in fact, I fail to see how it could be any clearer. I think that a comment by radio host Jim Kerr (who, I think we can all agree, is hardly exploring legal nuances and technicalities) sums it up best: "It just seems un-American."

I mentioned earlier that I feel there is a huge potential for abuse here, particularly by corporate entities. There was a case in California City, CA, where the town wanted to take 700 acres of privately-owned, mostly desert land and turn it over to Hyundai for the construction of a test track. I haven't been able to follow up on this, so I don't know what has transpired since, but I do have a disturbing quote from the town's mayor, Larry Adams: "I think it's a matter of one or two [who] probably are true believers in the freedom of mankind, blah blah blah, and they don't like eminent domain."

What is deeply disturbing about that case is the attitude of the mayor. Rather than try and represent the interests of the people who would be affected, he simply dismisses them out of hand for wanting to hold on to their property.

Other potential for abuse certainly exists. Given that corporations can come in to a town and make promises about bringing in new revenue and new jobs, city councils and other elected officials, especially those in towns that are, like New London or Asbury Park, experiencing hard times, listen to these promises very intently. When just making these promises doesn't work, there are other methods that can be used to influence politicians to support the corporation's interest. In any case, if the corporation decides it wants just about anything, it is going to have the backing of the town (and now the expanded power of eminent domain) to help make sure it gets it. We could have, in effect, corporations taking property from individuals (with the full approval of the government.

Perhaps most disturbing of all is that we now have a federal government which can effectively assume any power it wants, and it can take anything from anyone and give it to anyone else it wants, and all of this is now sanctioned by the branch of government that is supposed to be a sanity check on the other two. This was specifically what the federal government was designed not to do. The shredding of our Constitution continues, and I'm not sure that America can (or should) survive it.


Comments

»
Posted: 2005-06-29 11:48:17
Author: Joe

I love how the goverment screws America more and more every day. Thomas Jefferson had it right when he though that the goverment should be completely overhauled every 4 years.

» There would still be problems
Posted: 2005-07-06 08:58:37
Author: Phil

Part of the problem among elected officials is that they have to spend a large portion of time working on trying to get reelected. Especially with members of the House, where they need to run every two years, they don't have all that much time to "devote" to the business of governing. This also means that they need to be, or at least seem, responsive to the fickle demands of the voting public. Plenty of politicians throw out their own ideas of what's right and what's wrong in the face of public opinion. This also means that they don't look at issues in the light of constitutionality most of the time. The idea of the Supreme Court was that, since they weren't continually seeking re-election, they would be better able to focus on the tasks at hand. <br /> <br />I don't think that overhauling the entire government every fours years would be very productive. For one thing, you'd likely have the same people being re-elected, since most of the public is not going to take the time to familiarize themselves with every candidate for every position. Even if you did get an entirely new government elected, you've just given power to a new group of people. Without a complete shift in the mindset of the public, you'd just have the same type of people getting elected, since there's really a whole culture of politics and power, and plenty of people in it that aren't all that dissimilar. <br /> <br />In this case, I think that the court would probably have found differently if they had to be re-elected, but historically, things would probably be very different in terms of decisions on issues like slavery and desegregation.

» Eminent domain
Posted: 2005-08-03 22:09:17
Author: N.L. Neilson

Information on the California City, Hyundai-Kia track, Eminant Domain, "urban and blighted", Redevelopment. <br /> <br />Sen. Diane Feinstein, her husband Richard C. Blum and Catellus-Rail Road property (hereinafter "Feinstein-Blum-Catellus") <br /> <br />Senator Diane Feinstein's Desert Wilderness Protection Act, California Desert Protection Act of 1994, United States Code 16 USC 410aaa, allows the Rail Road (Catellus) property in the "wilderness" to be traded for U.S. Govt property. <br /> <br /> <br />The Hyundai 4,340-acre test track facility, the main portion for the track is 3 miles by 2 miles including Sections 9,10,11,14,15 and 16 of T11N R11W MDBM, 6*640 acres=3,840 ac. <br /> <br />Catellus owned 480 ac in Sec 11 (all but the NW 1/4) APN 235-010-02 <br /> <br />The following was owned by the U.S. Gov. <br /> <br />Sec 9 All 640 ac APN 235-020-25 <br /> 10 S 1/2 320 ac -010-01 <br /> 14 All 640 ac -030-02 <br /> 15 All 640 ac -030-01 <br /> 22 E-E 160 ac -030-25 <br /> ------- <br /> 2,400 ac <br /> <br />This is the link to the Kern Co Recorder for the APN's <br />http://recorder.co.kern.ca.us/kips/property_search.asp <br /> <br />The Hyundai track needed the property from Feinstein-Blum-Catellus (including the U.S. Govt property) and private property. The City of California City claimed 15,000 + ac (vacant desert) was "80% urbanized and blighted" to get the power of eminent domain. <br /> <br />Have not obtained a copy of the grant deeds from the U.S. Govt (BLM) to Catellus and then to Hyundai but believe this information is correct. <br /> <br />With Feinsteins "Protection Act" her husband Blum through Catellus could obtain U.S. Govt property and sell it to Hyundai, any additional property needed for the track was to be obtained by the threat of eminent domain and eminent domain. <br /> <br />N.L. Neilson

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