Excellent analysis Starchild...really fun to read. I happen to live
currently in Gavin's district. They recently gerrymandered the district
all the way up to Sea Cliff and I happen to be right on the edge. But I
plan to move, perhaps early next year and would like to stay in the
Richmond so it may be possible that I could run against Jake.
Joe O'Donoghue talks more than he does when it comes to me. If he
actually took me to lunch every time he says he will call me for it, I'd
be ten pounds heavier. Sarosh tells me that Tom Hseih (sp?) is planning
to run against Jake. I hear he is a solid candidate that will likely
win. So it's nice that Joe talks well of me, but he knew who he was
talking to when he spoke with you Starchild and the likelihood of him
actually endorsing my campaign is slim. However, if you want to press
him on it the next time you see him, let's see how serious he is. Maybe
I'm wrong.
Here's a great article on Eminent Domain from the Acton Institute.
Mike
Make Way for the Mall: A Principled Look at Eminent Domain
by Amy Vroom
"The fact that God gave the whole human race the earth to use and enjoy
cannot indeed in any manner serve as an objection against private
possessions. For God is said to have in the earth to mankind in common,
not because He intended indiscriminate ownership of it by all, but
because He assigned no part to anyone in ownership, leaving the limits
of private possessions to be fixed by the industry of men and the
institutions of peoples." (Pope Leo XIII, Rerum Novarum, nn. 8-9)
Jim and Joanne Saleet of Lakewood, Ohio, never expected to see their
home of 38 years bulldozed to make way for a retail mall and luxury
condominium units. For the city of Lakewood, the move is perfectly legal
under a provision of the law called eminent domain, which says that
private property can be taken for public use. Therefore, the city merely
has to say that the house is blighted (in the Saleet's case, their home
does not have a two-car attached garage) and offer some kind of
compensation. The city can then use the land to attract richer neighbors
and bigger businesses . Madeline Cain, Lakewood's mayor, admits that the
bottom line is the tax base, but also insists that taking property from
the Saleets and others is about quality of life and making sure that the
city has a vibrant and attractive community.[1]
The power of eminent domain is implicit, taken from the Just
Compensation clause of the 5th Amendment: "nor shall private property be
taken for public use, without just compensation."[2] It is an
instrumental power: it is a means through which government, acting under
its enumerated police powers, pursues other ends, such as building roads
or saving wildlife. However, eminent domain power is not inherently
legitimate: based on natural law, none of us should have a right to
condemn a neighbor's property, no matter the purpose or compensation.
This is why the power of eminent domain was called a despotic power in
the seventeenth and eighteenth centuries. However, eventually it was
ratified by the principle of pareto superior, the idea that at least one
party (the general public) is made better off, and no party is hurt (as
long as he or she receives just compensation). [3] Unfortunately,
efforts to redevelop America's cities have transformed eminent domain
from a "narrowly construed last resort into a widely, almost routinely
used development tool," and this transformation is hurting the Saleets
and 10,000 more homeowners and businesses across the United States like
them who have been told to make way for private development.[4]
In another case, the Maricopa County Superior Court of Arizona ruled
against Randy Bailey, who was fighting against the city of Mesa's use of
its power of eminent domain to take his family-owned brake shop in 2002
and replace it with a commercial hardware store.[5] In his decision,
Judge Robert Myers said that the city of Mesa was justified in taking
Bailey's land because the city's redevelopment plan called for improving
its image and making it more economically and socially attractive.
Furthermore, the judge calls for "putting land to its highest and best
use to maximize its retail potential." Judge Myers was way off base.
These eminent domain cases are inconsistent with a principled view of
land use, because they reduce the value of community to aesthetics, the
value of land to fiduciary potential, and the value of human freedom to
the coercive power of political influence.
No longer do most victims of eminent domain receive just compensation
for their loss of property. One of the most candid proponents of using
eminent domain as an urban development tool, Dr. Claire Gaudiani,
president of the New London Development Commission, said, "Anything
that's working in our great nation is working because somebody left skin
on the sidewalk."[6] Court battles to protect against such abuse are
long, arduous, and often prohibitively expensive, particularly when the
cost is borne by one or two property owners. Though there are nonprofit
organizations who defend property owners facing eminent domain cases,
right now these legal defense groups can only handle about a tenth of
the abusive cases that come to their attention.[7] Furthermore, small
"mom-and-pop" businesses lose priceless name recognition and family
tradition, and many have to pay much more than they are compensated for
new equipment, fixtures, and furniture for a comparable building
elsewhere.[8] Still more are forced into early retirement, left
wondering where the American Dream says that they must give up their
lives, homes, and careers so that the government can improve its tax
base.[9]
For people of faith, there are a couple of theological roadblocks that
may inhibit understanding eminent domain and its use as a tool for
achieving public policy goals. First of all, some think that since
humans are sinful, they should not be counted on to make decisions about
how to use land. But this view fails to take into account the fact that
institutions are marred by sin, as well. A private property system
balances interests and requires voluntary cooperation, emphasizing the
need for accountability in achieving public objectives. Second, there is
the command to love your neighbor as yourself, which may suggest that if
a property decision is seemingly made for the common good, it should not
be prevented.[10] However, loving a neighbor doesn't entail requiring
her to bear the burden of justifying her property rights or paying a
high cost to gain richer neighbors and bigger businesses. Therefore, the
power of eminent domain should be scaled back to include only those uses
that are true public goods, uses that are owned and controlled by the
public.[11]
Positive strides have been made to ensure that eminent domain is limited
to its constitutionally authorized use. Property owners and activists
have become increasingly vocal and successful in their grassroots
efforts. In New Rochelle, New York, they defeated a plan to replace
their neighborhood with a new IKEA store. In Baltimore County, Maryland,
property owners petitioned to allow voting on a referendum that
overturned a plan to condemn a large area for commercial and industrial
development. The Castle Coalition, a non-profit organization, litigates
cases challenging eminent domain and has published a pamphlet,
"Government Theft: The Top 10 Abuses of Eminent Domain: 1998-2002."[12]
At the federal level, Congress has proposed all sorts of legislation:
measures that would require government agencies to assess whether their
actions might impinge on property rights, measures that would provide
statutory compensation for certain federal agency actions, and measures
that would remove procedural roadblocks that frustrate efforts by owners
to challenge federal, state, and local regulations of property. By
building on these successes and by taking a principled approach to
eminent domain power, the property rights movement will prove that the
ultimate protection for private property will be found in reducing
government to its legitimate functions.[13]
Notes
Francis, Fred, "When is Your Property Not Yours?" NBC Nightly News, May
15, 2003. http://stacks.msnbc.com/news/914260.asp.
U.S. Constitution amend V.
Pilon, Roger, Cato Handbook for Congress: Policy Recommendations for the
108th Congress, Chapter 15 p. 145-161.
Staley, supra.
Staley, Sam, "Wrecking Property Rights: How Cities Use Eminent Domain to
Seize Property for Private Developers," Reason, February 2003, p.33-38.
Kramer, John E. Toppling 21st Century Tyranny, September 1, 2001 The
Heartland Institute.
Berliner, Dana, and Scott Bullock, "End Eminent Domain Abuse," The
Heartland Institute, May 1, 2002.
Paeth, Greg, "Whose Property Is It?: To Some, Eminent Domain Adds Up to
Misuse." The Cincinnati Post Online Edition, April 25, 2003.
http://www.cincypost.com/2003/04/25/domain042503.html.
Francis, supra.
Hill, Peter J., "Takings and the Judeo-Christian Land Ethic: A
Response," Religion and Liberty, March and April 1999.
Cato Handbook for Congress, supra.
"Government Theft: The Top 10 Abuses of Eminent Domain: 1998-2002"
Castle Coalition, 2002, 14pp. http://www.castlecoalition.org.
Eagle, Steven J. "Policy Analysis: The Birth of the Property Rights
Movement," Cato Policy Analysis No. 404. June 26, 2001.
Amy Vroom is a second year law student at Valparaiso University and a
Blackstone Fellow for the summer at the Acton Institute.