The Soverign Reins Private property rights being eroded

By JIM NIELSEN
Daily Democrat

June 23 I considered removing from my study wall the signed picture of U.S.
Supreme Court Justice Anthony Kennedy and I. The court had just released its
decision in Kelo v. New London related to eminent domain. I concluded I
agreed more often than not with Justice Kennedy so I let be.

I believe private property rights are one of the pillars of our republic.
This decision is grievously destructive of those rights. Justice Stevens
wrote for the majority and was joined by Justices Kennedy (concurring
decision), Souter, Ginsberg and Bryer. Justice O'Connor wrote the dissent
joined by Justices Rehnquist, Scalia and Thomas.

The majority affirmed the taking of private property for a "public purpose"
(as they broadly defined it) by a public entity was constitutional even if
the property was conveyed to private parties to be used for public/private
purposes. Exercising eminent domain for a public purpose like a road has
long been established if just compensation is paid. What is new and
adventuresome in this decision is the definition of public purpose concocted
by the majority.

Henceforth a sovereign, public entity can seize private property for
conveyance to other private parties for almost unlimited public purposes. In
the New London case, a private nonprofit corporation was accorded the
benefits of eminent domain to "build momentum for revitalizing downtown New
London," to create jobs and generate tax revenue.

New London property owners objected arguing the seizure violated the Fifth
Amendment's "public use" restriction. The majority opined the taking was
justified since the city had "a carefully considered" development plan, it
did not benefit particular individuals, and that it served the court
majority's expansive definition of public purpose.

The majority continued its recent trend of interpreting the Constitution in
global, even Darwinian contexts - "the needs of society have varied between
different parts of the nation just as they have evolved over time in
response to changed circumstance." The majority more summarily dismissed
than argued that such an expanded use of eminent domain would result in a
"blurring the boundary between public and private takings." They cavalierly
observed, "The government's public purpose will often benefit private
parties," then broadly expanded government's seizure powers.

Hewing to their "anything, anytime" reasoning they discarded even the meager
test that the sovereign must demonstrate a "reasonable certainty" that the
expected public benefits will actually accrue.

More disturbing they cite, in a footnote that the Constitution's "taking
clause" largely operates as a "conditional limitation, permitting the
sovereign to do what it wants as long as it pays the charge." Do what it
wants!

Justice O'Connor opined in dissent, "Under the banner of economic
development, all private property is now vulnerable to being taken or
transferred to another private owner" and that the majority is washing out
"any distinction between private and public use of property" thereby
deleting the words 'for public use' from the "Takings Clause."

The majority did leave a modicum of hope emphasizing "nothing in our opinion
precludes any state from placing further restrictions on its exercise of the
taking powers." Justice O'Connor also wrote in dissent, "... we emphasized
the importance of deferring to legislative judgments about public purpose."

California law currently limits a city from taking land for economic
purposes unless the land is in designated "blighted areas" although the city
of San Diego is currently moving to take the property of a laundry owner to
build townhouses and condominiums.

The majority also recognized "using eminent domain to promote economic
development are certainly matters of legitimate public debate." So let the
battle be joined.

Senator Tom McClintock and Assemblyman Doug LaMalfa have introduced SCA 15
and ACA 22 reasserting the property protections in the Bill of Rights and
specifically prohibiting the seizure of one person's property for the
private gain of another.

Senator McClintock states, "The decision completes the transition from the
old America of individual rights to a collectivist society where government
apportions property from those it doesn't like to those it does." McClintock
correctly observes, "It is now entirely permissible for government to seize
the home of one person for pennies on the dollar to give it to another - not
for some vital over-arching public necessity, but simply because the new
owner can pay more taxes than the old."

Assemblyman LaMalfa sounded the alarm "Some people say it can't happen here.
Don't count on it. Until last week, we believed the U.S. Constitution
protected all of us - from predatory government and greedy special
interests." He calls for the people to force government and the courts to
"hit the reset button" and restore the historic interpretations that protect
private property.

It was the excesses and abuses of "a sovereign" King George III that
prompted the greatest assertion of freedom and individual rights in history,
the American Revolution. It may be the current excesses of a Supreme Court
majority that seeks to enthrone cities and counties as Nuevo Sovereigns that
will prompt another more quiet revolution.

- Jim Nielsen is a former state senator who writes for The Daily Democrat.