What Happens When You Lower the Bar on Property Rights

Here's an ugly eminent domain story that ran in the L.A. Times this weekend:

A year after Los Angeles seized three acres from a private company to construct a public building, a city councilman wants to sell the land to another private firm for a commercial development.

Both companies are furniture manufacturers. But executives with the company that would buy the land have political connections and have made $17,600 in campaign contributions to key city leaders.

More here.

Comments

[The Ask Murderer]

My God, we really need to start killing our public officials, and Supreme Court Justices (for that matter), again. What ever happened to lone wolfs and assassins, have they all been detained?
… and is there, now, any question whether Timothy McVeigh was on the right path?

[happyjuggler0]

Wow, you mean Republicans aren’t the only corrupt politicians out there? Democrats are corrupt too? I thought they were the good guys.

I’m conflicted on whether or not to even respond to “The Ask Murderer”. I’ll just leave it at this: Yes, Timothy McVeigh was on the right path…the path to Hell where he belongs, along with the arrogant Feds that overstepped their bounds at Ruby Ridge.

[Jennifer]

I haven’t seen any noticeable improvements in this country since McVeigh set off a bomb underneath a day-care center.

Of course, it is possible that one of those dead infants would have grown up to be Hitler, I guess.

[Stephen Macklin]

Here’s the language of proposed amendment to the Constitution that would have prevented this. The idea behind it was to allow for historically legitimate use of eminent domain while ensuring that its use was more of a burden on the government than the citizen.

The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

You can sign the petition here.

[luisa]

Is that really “What Happens When You Lower the Bar on Property Rights” or is it “What Happens When You Allow Large Private Contributions to Political Candidates?” (I think it’s both)

[Prufrock]

This is why we need stronger and better campaign finance reform laws. If they were in place, this could never happen!

[Galius_Persnickety]

If they pass that amendment, the only people having their property seized at 2x face value will be politicians and their contributors.

It will be just another transfer of money from working taxpayers to sycophantic politicians.

For every law, there is an unintended consequence.

[Jennifer]

no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

It’s hard to say for sure because the language is convoluted, but grammatically, I think this still lets the government take property for private use. It’s that “for other than a public use” business that gets complicated, since the “No” at the beginning of the sentence. . . “No government agency shall take property for other than a public use.”

Who wrote this, anyway? I agree with the sentiment, but the grammar means it would be an utter clusterfuck if anybody tried to actually implement it. The different definitions of ‘public use’ in the second paragraph are not separated by the word “or,” which means even the dumbest of lawyers could get the whole thing thrown out on the grounds that it is self-contradictory.

[Randolph Carter]

Jennifer,
It was that wack-talkin’ jive-turkey Madison.

[Jennifer]

Actually, for modern people we need to use only short sentences with single-syllable words. Look at what has happened to the second amendment! That whole first clause about the well-regulated militia basically means (in modern English) “Since the government will have to have a standing army with weapons, we’d better let the people keep weapons of their own, just in case the army or the government starts getting Bad Ideas.” But no–people nowadays read that to mean “You can’t have a gun unless you belong to a militia.” Idiots.

[Randolph Carter]

Glad to see that no one took the campaign finance reform troll bait.

[Stephen Macklin]

Jennifer,

The amendment was written by an ad hoc committee of bloggers, none of whom are lawyers.

The language in the first section though perhaps a bit overwritten and grandiose says that a government cannot take property for anything other than a public use.

The second section sets out what does and does not qualify as public use, and gives two standards. If a taking does not meet one of those tests, it is not allowed.

Actually, if this passed it would take one hell of a smart lawyer or one hell of dumb judge to get it tossed out. I may be wrong but I think it would take another amendment to throw out an existing one.

Galius,

Yes there is the danger that suddenly the connected would be having their property seized to collect the windfall. In cases where it was abused or rose to the level of actual corruption, there are mechanisms for dealing with that – voting and prosecution.

When this was being developed it was agreed that as long as there was eminent domain there would be the potential for some abuse. Eliminating eminent domain outright seemed a lot closer to impossible than merely trying to limit it.

[Isaac Bartram]

If they pass that amendment, the only people having their property seized at 2x face value will be politicians and their contributors.

Actually, you’re probably right. It’s pretty much what already happens.

I know of several cases where connected parties have bought up properties in the path of a proposed highway and made a killing on the taking.

It works especially well if that connection extends to knowing zoning officials who can rezone said properties to a higher use (ag to commercial eg).

To put the icing on the cake you get an engineer and architect to prepare preliminary plans for a development. Now you’re talking some real damages.

As I have said many times on this subject the amount of compensation is hardly ever a real issue in ED cases. People resist expropriation because of emotional and sentimental attachments to their properties. These are things without a price.

[Jennifer]

Actually, if this passed it would take one hell of a smart lawyer or one hell of dumb judge to get it tossed out. I may be wrong but I think it would take another amendment to throw out an existing one

Not really. Bear in mind–if I have a warrant for your arrest, and every single detail is correct except that your name is spelled “Steven” rather than “Stephen,” that alone can get everything tossed out, if you have a clever enough lawyer.

You might not be able to afford so clever a lawyer, but you can be damned sure that the government can.

[Jannia]

Hmm. Grammatically speaking, Jennifer is right.

no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

That sentence as it is written says that a government can take property for non-public use as long as there is just compensation (no government … shall take property … for other than public use without just compensation). “without just compensation” modifies “other than public use” and sets up the private use escape.

Putting an “or” between “use” and “without” (no government … shall take property … for other than public use or without just compensation) is actually worse, since if we read the “or” as exclusive this sentence would allow the government to take property either “for public use” or “without just compensation” (and I’m pretty sure that without just compensation is the worst of all possible worlds).

Putting an “and” is also problematic (no government agency … shall take property … for other than public use and without just compensation): it restricts government taking to public use, but leaves open the interpretation that property taken for public use MUST be taken without just compensation (again a big bad).

The compensation bit needs to be split out into a separate clause. It should probably be rewritten as “for other than public use, in which case said government or agency thereof must offer just compensation”.

Law and grammar geeks: too much overlap for my comfort sometimes.

[Jannia]

Hmm. Rereading the original, it also has the freebie interpretation if we take “for public use without compensation” as the object.

Definitely in need of a rewrite. English is way too ambiguous sometimes.

[Stephen Macklin]

Not really. Bear in mind–if I have a warrant for your arrest, and every single detail is correct except that your name is spelled “Steven” rather than “Stephen,” that alone can get everything tossed out, if you have a clever enough lawyer.

How does a judge throw out a constitutional amendment on a technicality? (McCain/Feingold not withstanding!)

[Jennifer]

How does a judge throw out a constitutional amendment on a technicality?

The technicality won;t get the amendment thrown out, but the grammar will have the amendment used in ways its authors never intended. As it stands now, the first paragraph lets you take property for private purposes, and the second paragraph has two completely conflicting meanings of “public use.” It’s as useless as an amendment which says “Black people can vote. No, they cannot.”

Also, in the thrid paragraph, talking about “prices in the previous six months”. . .six months from what point? You need to specify “six months from the time of the initial attempt to condemn the property.” Otherwise, it may well be “six months before the money is actually paid,” and that will be a much lower sum since property values tend to drop once they have the threat of ED hanging over them.

[TJ]

Jennifer’s correct. The grammar in that amendment is atrocious, which will lead to all sorts of interpretive problems. Even more to the point, historical uses of condemnation through public domain have usually (always?) been about economic development. Why do we need (wider) roads, or land for fire stations or for a water plant, if not for economic development? There’s no other reason to build them–any other concern, for safety, convenience, or public health, stems from the desire to make some area amenable to the functioning of a robust economy.

[Jennifer]

TJ–

Military bases wouldn’t necessarily fall under the economic development standard; granted, they help their local economies, but that’s not their primary reason for being.

Stephen, if these guys are friends of yours, have them drop me an e-mail and I’ll rewrite the damned thing for free. I used to be a copyeditor, which is why those glaring errors jumped out at me–but believe me, if that amendment, word-for-word, somehow made it into the Constitution, we’d be in a worse ED situation than we are now, with the exception of your double-the-price rule. Everything else would be worse.

[TJ]

Further, I know you think you are making a clever state-sovreignity flourish by referring to “these United States,” but what other group of states referred to as “United States” could you possibly be referring to? In the interest of not sounding like a bunch of retrograde dunderheads, I would not advise libertarians or other property-rights advocates making themselves sound like a bunch of pre-Civil War fuddy-duddies.

And has been argued elsewhere and before, why should anyone care about state sovreignity? If it is useful as a means of promoting individual liberty, then I think it is great. But never forget that a state could be just the size of Rhode Island and nonetheless by tyrannical. States’ rights, like strong federalism, is just a ploy, a gambit, to get what one wants at a certain time, and like all ploys and gambits, they can be used by any side. Making a philosophical point to always support one or the other is foolish in the extreme, if what one claims to be interested in is individual rights–making a point to always support one ploy as better is as moronic as arguing for the moral virtue of the Queen’s pawn opening or the Sicilian defense.

[happyjuggler0]

If we’re going to have a new takings amendment, then of course this is only a rough draft, and will be changed to something grammatically better. This does not invalidate whatever points it tries to make.

I’d love to see a takings amendment that included government regulations on private property though. The governemtn can take 90-100% of your property via regulation now with zero compensation. This is so clearly wrong to every American except those that want the taking (i.e. theft) done for free, free being the government’s perspective.

I won’t sign any such petition until a regulation takings clause is inserted.

[TJ]

Happyjuggler,

That’s of course why the amendment is a non-starter. Everyone with a large interest in regulation would fight tooth and nail to kill it, and it would die.

[happyjuggler0]

TJ,

You are likely correct that it would inspire those in favor of takings via regulation to vehemently oppose its passage. But such opposition would also have the helpful effect of pushing the issue into thenational debate instead of mostly the semi-organized libertarian community.

I’m still not signing the amendment til then. 😮

[Stephen Macklin]

Jennifer,

The amendment was written by a group of volunteer bloggers – essentially anyone who wanted to contribute. The dicey grammar is the result of the committee approach. The kind of error that can creep in when you spend time negotiating one clause without paying close enough attention to how it effects the sentence.

A group case of not seeing the forest for the trees.

That said, I don’t think anyone involved suffered any delusions of seeing this text or a more correctly worded version adopted as an amendment.

The goal was to send a message about how we a citizens felt about the state of property rights under the Kelo decision.

So far that hasn’t worked out too well either.

[Stephen Macklin]

Jennifer,

The amendment was written by a group of volunteer bloggers – essentially anyone who wanted to contribute. The dicey grammar is the result of the committee approach. The kind of error that can creep in when you spend time negotiating one clause without paying close enough attention to how it effects the sentence.

A group case of not seeing the forest for the trees.

That said, I don’t think anyone involved suffered any delusions of seeing this text or a more correctly worded version adopted as an amendment.

The goal was to send a message about how we a citizens felt about the state of property rights under the Kelo decision.

So far that hasn’t worked out too well either.

[MJ]

“If they pass that amendment, the only people having their property seized at 2x face value will be politicians and their contributors.”

Perhaps so, but the section of the proposed amendment that eliminates takings for economic development will cut down on the number of takings overall. There are only a limited number of legitimate “public uses” such land can be taken for. Besides, the point of ending eminent domain abuse has nothing to do with land speculators, but protecting those people who have no interest in giving up their property for any price. Raising the cost of using eminent domain for governments will make the politicians think twice about abusing their citizens who are not speculators. If curtailing eminent domain means some may abuse the system to get a windfall profit, I’d say that’s an acceptable loss.

[Jennifer]

If curtailing eminent domain means some may abuse the system to get a windfall profit, I’d say that’s an acceptable loss.

I agree. I’d also add this: if you are looking for a system that is absolutely corruption-proof, you’ll never find what you’re looking for.

[joe]

Stephen Macklin,

“The goal was to send a message about how we a citizens felt about the state of property rights under the Kelo decision.

So far that hasn’t worked out too well either.”

If it’s any consolation, the problems with eminent domain have been a concern of mine for years, and I have never seen so much interest paid to the issue, among political figures as well as the general public, than in the months since Kelo came down.

The debate and solutions may not be going precisely where doctrinaire libertarians would like them to go, but a thousand little flowers are blooming.

Also, as far as the language of your amendment goes, many public projects – highways and infrastructure in industrial parks come to mind – are carried out for the specific purpose of promoting economic development and increasing tax revenues. In such a case, your statements defining public use would appear to contradict each other.

[Stephen Macklin]

Joe,

The group struggled with that language. There was a lot of debate about putting in language directly targeting Kelo. The difference we saw was that you could ascribe an economic benefit to virtually any property taking. Building a new school improves a town/neighborhood making it more desirable – higher property values = higher property tax revenues. Those benefits are tangential to the actual project not the goal of the project.

And yes, the widespread focus on issues of eminent domain is some consolation.

[Stephen Macklin]

Joe,

The group struggled with that language. There was a lot of debate about putting in language directly targeting Kelo. The difference we saw was that you could ascribe an economic benefit to virtually any property taking. Building a new school improves a town/neighborhood making it more desirable – higher property values = higher property tax revenues. Those benefits are tangential to the actual project not the goal of the project.

And yes, the widespread focus on issues of eminent domain is some consolation.