Since the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which allowed that municipality to seize private property on behalf of the Pfizer Corporation, 43 states have passed laws protecting property rights against Kelo-style eminent domain abuse. Mississippi is not one of those states.
But that nearly changed in March 2009 when the Mississippi legislature voted overwhelmingly in support of a proposed law which would have guaranteed that "the right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development or for a private purpose; or for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity."
In addition to enjoying strong bipartisan support in the statehouse, this piece of long-overdue reform was backed by groups as politically diverse as Americans for Tax Reform, the Southern Christian Leadership Council, and the Mississippi Forestry Association.
But none of that mattered to Republican Gov. Haley Barbour, who promptly vetoed the bill, claiming it would cripple his ability to lure large corporations into the state. As Barbour, a former chairman of the Republican National Committee, admitted in his veto statement, had he not promised Toyota that he would use eminent domain to secure a piece of contested land for its Blue Springs facility, "Toyota would have broken off negotiations with us and chosen one of the other states competing with us for the project."
That sob story may be true, but it still does nothing to justify the state's forcible seizure of private property for the benefit a rich and powerful corporation. Toyota won't be building bridges or roads or waterways or any other legitimate public project that might permit the use (or threat) of eminent domain. It wants to build a plant to manufacture cars and then sell them for a profit. That's not a legitimate public use. If Toyota—or any other corporation—wants a particular piece of land, it should either pony up the market price or find somewhere else to settle. By the same token, if Barbour wants to attract business to his state, he might try pushing for lower corporate taxes or for any number of other pro-business enticements that don't involve stripping citizens of their fundamental rights.
Last Thursday, the situation went from bad to worse, as Barbour introduced an eminent domain bill of his own during a special legislative session. It's a tricky piece of work, one designed to appease lawmakers and voters by borrowing some of the best language from the vetoed bill, yet with certain disastrous additions to the text. Here's how Barbour's eminent domain "reform" bill reads (emphasis added):
The right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development, for a private purpose, for enhancement of tax revenue, or for transfer to a person, nongovernmental entity, public-private partnership or other business entity, unless the taking of private property is authorized for a project under the Mississippi Major Economic Impact Act.
The Mississippi Major Economic Impact Act, of course, is one of the biggest reasons why the state needs eminent domain reform. Indeed, that act facilitates the very sort of sweetheart deals between politicians, developers, corporations, and the Mississippi Development Authority that H.B. 803 was specifically designed to prevent. So in the alleged name of protecting property rights, Barbour champions legislation that would undermine those rights even further.
What happens next? Christina Walsh, the director of activism and coalitions at the Institute for Justice, the libertarian legal firm that represented Susette Kelo before the Supreme Court and has since spearheaded many state-level eminent domain reforms (including this one), urges Mississippi lawmakers to reject Barbour's bill and "to stand behind the constitutional principles they voted for earlier this year and behind the constituents that voted them into office."
In March 1792, James Madison took to the pages of the National Gazette to explain why property rights were essential to the preservation of a free society. "Where an excess of power prevails," Madison observed, "property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." Here's hoping those lawmakers do the right thing and stand up one more time for Mississippi's victimized property owners.
Damon W. Root is an associate editor at Reason magazine.