05 July 2005

Say no! to Eminent Domain for Private Development

This is my response, actually agreeing (sacre bleu!) with John Tierney's column in the New York Times today.

Mr. Tierney:

Usually, I disagree with what you have to say pretty much entirely, but here's a curious area of common ground between the "get government off our backs" conservatives and those of us liberals who have come to realize that the road to perdition is indeed often paved with good intentions... and with a little of that "for their own good" paternalistic mindset all too willing to stretch the plain meaning of the original constitutional protections.

I know I'm out of step with most of my liberal compatriots, but I think most "redevelopment" has been an unfortunate mess (and yes, for the same reasons that State Socialist infrastructure like that of East Germany and the Soviet Union is so mind-numbingly dreary and ineffective). It is indeed past time to rethink the rationale that allowed it in the first place. Genuine public use...public buildings, highways, roads, rail lines, airports, hospitals, schools, universities... of course. But private redevelopment "for their own good," using the strong arm of eminent domain, I say no, too. And for the simple and obvious reason: it just ain't right.

But the courts need not have to revisit the issue, and it need not be a litmus for future supreme court justice candidates. (We have enough other issues to fight over). The congress, which too often abrogates its responsibilities, could, without fear of being overturned, simply legislate that no government agency, whether federal, state, or local, may take property except for certain defined ... and genuine ... public purposes, regardless of "fair compensation." There's no need for reinterpretation of the constitution, still less amendment of it, on this one, as it quite clearly falls within the congress's legislative and regulatory powers. (The state and local part would come under the interstate commerce clause, but given the way THAT's been used in the past, this would hardly be a stretch; see the Medical Marijuana decision).

Real conservatives in congress (of both parties) should readily support such legislation. I fear it wouldn't pass right now, though, and largely because most of the Republicans in congress aren't really conservative at all... they're as solidly in the pockets of big business contributors as are the likes of the Democrats-in-Name-Only Biden and Lieberman.

It seems strange to say this, but good luck with your campaign to convince Americans that this is an important issue, and that their rights here (as in many other areas), are under assault.

David Studhalter

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