New Eminent Domain Laws - Pacifiers or Powderkegs?

In the recent U.S. Supreme court case Kelo vs. City of New London, Connecticut, the court allowed local governments to continue the seizure of private properties, not for the elimination of slums or blight, but for the sole purpose of private "economic development." Redevelopment takings of private property have been around since the days of the "Federal bulldozer" in the 1950's. But this particular court ruling has awakened "homevoters" across the country, many of whom are seeking reforms in their respective state legislatures.

Although recently Alabama was the first state to pass eminent domain law reforms, 85% of those polled in the state felt it would not change outcomes - people's owner-occupied homes would still be taken for private redevelopment. The obvious reason for this cynicism is that Alabama's new law contains a loophole which would permit takings of blighted properties for economic redevelopment by private third parties.

The legal basis for the public's cynicism is that restricting the use of eminent domain for "economic development" is difficult because the term is vague, as all government actions can be seen as promoting economic development in one way or another. As U.S Supreme Court Justice John Paul Stevens wrote: "There is.no principled way of distinguishing economic development from the other public purposes that we have recognized."

In Connecticut, where the Kelo family lives, the State legislature may do the same two-faced thing the Alabama legislature just did. The political system is simply not responding to public opinion except with appeasing legislation that changes nothing. The politicians just don't seem to want to get the message. And the consequences could be explosive.

The great 15th century political thinker Niccolo Machiavelli once advised local rulers: "when neither their property nor their honor is touched, the majority of men live content." The reverse of this wise advice to politicians is also true - touch one's property and the result will be discontent, political upheaval, and even mass obstruction of the law.

If the Connecticut legislature passes a bill which does not change outcomes by exempting owner-occupied homes from eminent domain for redevelopment, and then sends the sheriff in to remove Mrs. Susette Kelo, he will find several thousand people surrounding her house. This writer understands that plans are already under way for this. Then what happens? Then the National Guard comes in and the police and the military are involved in domestic politics. It might draw comparisons as a domestic Tianamen Square.

And this won't happen only in Connecticut. Everywhere people are led to expect concrete eminent domain reform.

In other states it may not go as far as seeking a blanket exemption of owner-housing from eminent domain for all public purposes. Rather, it may limit redevelopment acquisitions to voluntary transactions with just compensation based on the highest and best use of property for its proposed commercial redevelopment. The rationale behind the compensation issue is that if prevailing law requires property owners to suffer a loss in value from any downzoning of their property, why are they deprived of the price appreciation from upzoning by redevelopment in the name of a public purpose - which ultimately ends up to be a private use of property anyway. The thinking is that what's good for the goose should be good for the gander.

As legal scholar John Ryskamp exclaims: "Where politicians enact something which insults people's intelligence and changes nothing, there will be similar protests when the law enforcement authorities show up. They don't seem to understand that they need to pass legislation which CHANGES OUTCOMES. They think they can pass laws which pacify the public and allow developers to go on doing exactly what they want to do. This is a big mistake."

In a scholarly paper published online (see: Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights, With a Model Complaint Establishing a Right to Housing Under the Due Process Clause of the Fifth Amendment " July 25, 2005; http://ssrn.com/abstract=562521), Ryskamp concludes that the Kelo case has galvanized public opinion for an inferred "New Bill of Rights" consistent with the U.S. Constitution, as follows:

Even though there is no political consensus for the above, the Terri Schiavo and Kelo cases seem to be flash points behind the lurking public opinion for such rights.

The New Bill of Rights reflects "negative" rights, meaning that they are the right to be left alone. To some degree it is the opposite of President Franklin D. Roosevelt's "Black Letter Law" put forth in 1944 which affirmed positive rights, including "the right to a useful and remunerative job." The right to a union job in a new commercial business or government job as part of a redevelopment project is now clashing with the right to one's domicile. The old New Deal may now be clashing with an emerging New Bill of Rights.

Politicians who don't get the message from homevoters about the overreaching use of eminent domain for redevelopment may be playing with political fire. Politicians intuitively know that creating jobs by redevelopment "buys" votes. What they may not also intuit is that a man's home is his castle. To again quote Machiavelli on the importance to which people attach to their homes as part of their inheritance: "A son can bear with equanimity the loss of his father, but the loss of his property inheritance may drive him to despair."

No individual shall be involuntarily deprived of (owner-occupied) housing

What the hell does this mean? Anyone who can't afford owner-occupied housing is being involuntarily deprived of owner-occupied housing. So would this statement mean the state must provide owner occupied housing to anybody who wants it?

Our legislatures may be passing eminent domain laws but I haven't seen anyone point out how this ruling has turned the basis of our society and laws 180 degrees. Rather than having rights granted by God and secured by government, we are now acknowledging rights granted by government. Instead of having a Congress exercise its Constitutional power over a rogue court, they have allowed a contraconstitutional ruling to stand and upturn our entire country. We accept bandaid fixes to a fatal wound.

It could be easily construed as economic development for cities to take vast housing complexes, pay the owners off, and turn around and sell it to companies that manage condos or appartment buildings.

There would be more tax revenue, (now you get sales tax, property tax, income tax, instead of only property-tax).

It would be under public control and therefore you would never have to worry about zoneing violations, or all those other pesky issues that private ownership entails.

All of this would fit under the new Eminent Doamin ruleing. All means of production and housing, churches, now are sugject to state ownership, at a price the state gets to decide.

The obvious reason for this cynicism is that Alabama's new law contains a loophole which would permit takings of blighted properties for economic redevelopment by private third parties.

I had a long and heated discussion with 2 State Reps and my State Senator (all Republicans) at the County Fair on this point Saturday. When I asked why none of them had been quick to sponsor a Wisconsin answer to Kelo, the two Reps started weaseling on me. "Well you have to be careful in what you write because you still need to leave room for needed urban renewal," said State Rep. Mark Gotlieb (R).

I didn't get a much better answer from the other two.

I can see this legislation being used by over aggressive municipalities to quiet political speech. There are people here who would delight in doing that. The tax hungry municipalities are already using the "blighted" excuse in Germantown, Menomonee Falls and Port Washington.

I told these Reps that it is pretty bad when I agree with Maxine Waters more than my do-nothing Republican officials.

Be afraid; be very afraid.

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