Property Rights

Eminent Domain Reform Is a Bipartisan Opportunity

Eminent domain laws are bad for property rights and social justice alike

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If you could use some good news—and these days, who couldn't?—pay attention to Virginia's debate on eminent domain. The progress toward a constitutional amendment limiting that power has something to gladden the heart of every political type.

Lawmakers approved the measure for the first time last year. They will have to pass it again a second time before it can go to the voters in a referendum. If the voters approve it, then the language will be added to the state Constitution.

Passage seems likely. The November elections increased the Republican count in both chambers of the General Assembly, which—in the wake of the Kelo ruling by the Supreme Court—approved a 2007 law to constrict eminent-domain authority. Essentially, the constitutional amendment would elevate the statutory protections to constitutional ones. The measure restores the rights that the Supreme Court eviscerated by ensuring that private property can be taken only for truly public uses—not to promote economic development, or to increase the tax base, or to enrich powerful special interests.

It would thereby preclude episodes such as Roanoke's condemnation of property owned by Jay and Stephanie Burkholder. The city's redevelopment authority seized their property to hand it over to Carilion Clinic, a regional health-care organization with eight hospitals and 600 doctors. No sooner had Roanoke won than Carilion announced it didn't want the property after all.

The Amendment also might discourage localities from using the threat of eminent domain as a negotiating ploy—something Alexandria has done in a long-running dispute with the Old Dominion Boat Club that will soon be heard by the Virginia Supreme Court.

Not surprisingly, local governments oppose the amendment. Among other things, they worry about a provision stipulating that property owners should be compensated for the loss of business resulting from government takings. Does this mean they would support the amendment absent that provision? Er, no. The Virginia Municipal League (VML) and the Virginia Association of Counties (VACO) fought 2007's statutory effort to protect property rights as well. The VML did not want to limit condemnation only "to pure public uses" and felt Kelo produced "the correct outcome."

Well. Kelo allowed New London, Conn., to bulldoze the blue-collar neighborhood of Fort Trumbull for an economic-development project. The project never happened, and the neighborhood was turned into a dump. Literally: Officials designated the area a dumping ground for debris from Tropical Storm Irene.

Keep that in mind when localities start warning about the Virginia amendment's "unintended consquences." In Kelo, the Supreme Court allowed local governments to confiscate property for no stronger reason than their own speculation that handing it over to somebody else might, at some point in the future, bring in more tax revenue. No proof was required, leaving it up to homeowners to prove why their property shouldn't be taken. Virginia's proposed constitutional amendment would shift the burden of proof back where it belongs: on the governments that want to seize property in the first place.

Critics of the amendment say existing state protections should suffice. Not really. Ask yourself: Would you feel comfortable knowing other basic rights—such as the right to speech or freedom of worship – were guaranteed only by statute? Rights should be written into constitutions, which are the rules by which we decide how all other rules get written.

This is an easy sell to conservatives, who tend to favor property rights. But liberals have good reasons for supporting the amendment as well. The first is the asymmetrical nature of government takings. Local governments are never going to seize property from rich developers and give it to poor homeowners. The process will always flow in the other direction, which makes eminent domain for economic development purposes repulsive from a social-justice perspective.

Second, as Justice Clarence Thomas pointed out, the courts would never cede their judgment to the other branches of government in a Fourth Amendment question about when authorities should be allowed to search a home. Yet in Kelo they are expected to cede their judgment in the Fifth Amendment question about when authorities can tear one down.

Third, property is "the guardian of every other right." You can do things in the privacy of your home that you cannot do on public property. Strong safeguards for private property help protect other rights as well.

One final point. Liberals are deeply worried that after November's elections social conservatives will swing a lot more weight—and will use it to impose restrictions on women's reproductive rights. And granted, progressives will find pro-life absolutists unresponsive to any argument they make. But they might be able to start a dialogue with less adamant conservatives by pointing out that questions of eminent domain and reproductive rights are not wholly unrelated. No property is more private than your body (if you don't own it, then who does?) – and no one can truly be said to value property rights if he thinks the government should tell you what to do with it.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch, where this article originally appeared.

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  1. The agricultural city-State is invasive and occupational. Privation Property is the ultimate Eminent domain that uses big-government regulation on the Land to restrict the free movement of free Non-State families freely foraging.

    1. …and a partridge in a pear tree.

    2. lol…. I want to be a foraging drone

    3. Customer #: 1243576
      White Indian

      You have made a withdrawl of -10 internetz

      You have 275 internetz remaining in your account.

    4. Signs. Signs. Everywhere theres signs.

    5. “The agricultural city-State is invasive and occupational. Privation Property is the ultimate Eminent domain that uses big-government regulation on the Land to restrict the free movement of free Non-State families freely foraging.”

      Org! Long time no see! Whatup?!

    6. YOU want to roam freely as you should, but it is not for other explorers, discoverers and users….Calling the cops — Arrest the despoilers, I said they could forage, not exploit!!!…..

    7. How long would “free Non-State families freely foraging” have to forage in order to rustle up some internet access if there were no “agricultural city-State” at all.

    8. AAAAAGGGGGGGGGGGGGGGHHHHHHHHHHHHHHHH! STOP FEEDING THE FUCKING TROLL!

      When ignored it goes away (or is, at least, minimized). Please don’t respond to it.

  2. It looks like the manic cycle hath returned for our white red guy. I guess that means another couple of days of having each and every thread shit upon.

    Great.

    Fuck.

    1. Libertarians are not interested in freedom. “Freedom” is just their masquerade to whitewash the aggression of city-Statism.

      1. they are all made of atoms. harumph.

        1. I know you are but what am I?

  3. This is an easy sell to conservatives, who tend to favor property rights.

    I’m also told they favor big business above almost all else. Most disputed eminent domain cases appear to be about the state taking property from its owner and handing it to a business.

    I suppose it’s possible Virginia Republicans are simply upset it’s not their business friends who are getting the coveted properties. City governments tend to be run by Democrats.

    1. Trail of Tears: the original taking.

      1. For a taste of your whiskey, I’ll give you some advice.

        1. OK, just don’t drink down my last swallow…

            1. Seeing the amount of brown saliva you glopped all over it, you could’ve kept it either way. I’m guessing daily brushing isn’t a big part of your advice?

      2. You are aware, I hope, that the Cherokee were largely practitioners of your much dreaded “agricultural city-state”.

        1. That was the old name for casino?

        2. The agricultural city-State (civilization)’s 5 primary criteria:

          ? Settlement of cities of 5,000 or more people.
          ? Full-time labor specialization.
          ? Concentration of surplus.
          ? Class structure.
          ? State-level political organization.

          The eastern woodlands Indians had none of those.

          But they did have some domestication, and small-scale horticulture.

          1. Full-time labor specialization

            That standard has never been met, so why the fuck dont you shut up as apparently an ag city-state has never existed.

    2. Foe.. regardless of the media/academia meme about big business and the gop, blue and red are both for sale to anyone with enough money. For many of them it doesn’t take much either.

      1. Which makes me wonder why the VA Republicans favor the amendment. What’s their angle?

        1. You have to realize that the Virginia state legislature is one of the last in the country to maintain the tradition of a citizen legislature.

          They only meet for two months, and they make less then 20,000 dollars. Not as good as the Texas Legislature, but not a full time parasitical drone body either.

      2. I would agree.

        But the mainstream narrative spread by both academia and the mainstream media is that it is only the GOP that would even dare get in bed with big business.

        Perception is often reality. That’s why Generation Dumbfuck (AKA the OWS) are almost universally Team BLUE voters. Even though Team BLUE is in bed with big business every bit as much as the GOP, it doesn’t matter because the overarching story of America as it’s happening is that the GOP is the only party to be corrupted by their ability to give favors to big government donors.

    3. Well the dissenting opinions in Kelo were conservatives, minus Kennedy who joined the more left Justices. One does scratch their head and wonder why are left leaning Justices supporting big business? It should not be too hard to figure out, socialist/communist don’t think too highly of an individual’s property and wealth, even though the facts of the case supported big business. Future takings could easily be used for say collective farming or any government purpose. If you also look at the polls on this issue both Republicans and Democrats are against E.D.

  4. There has to be a cloud behind this silver lining.

  5. “But liberals have good reasons for supporting the amendment as well. The first is the asymmetrical nature of government takings. Local governments are never going to seize property from rich developers and give it to poor homeowners.”

    But, but the developers are socially responsible and promised to build low income housing.

    1. Big developers understand smart growth and sustainable development. They work in partnership with public sector planners to best meet the needs of the community. Small landowners just do what they want with property at the expense of society’s needs.

      1. Was this sarcasm? Or do you actually believe that rot?

        1. Megyn Kelly is a fox news anchor so Im guessing its just a joke.

      2. “Sustainable Development” projects are loved by communitarian politicians but would never exist in a free market, because nobody wants them. Usually done as “suburban infill”, first there is bulldozing of what was formerly a small city’s quaint downtown. Next, a hideous-appearing “transit village” of multilevel condos over retail. Usually passed quickly through small city councils with eminent domain because it will “revitalize” their downtown.

        Inevitable result: Mostly vacant storefronts, with a nail salon or a Starbucks if the development is lucky. Overpriced condos that nobody wants (because if you move to the suburbs you want a back yard!). Project goes bankrupt, city downtown becomes decayed, but developers and politicians have long moved on.

        For a good laugh go to Google Images and seek images of “transit village”. Hundreds of lovely artist’s conceptions of to-be-built idyllic developments, always with happy families as pedestrians, a lady on a bike, and Left Bank-style outdoor cafes. But no actual photos of transit villages, because they are usually failed eyesores.

        1. Spot on.

          I like how the pics portray something that looks like it might work in Miami but is a proposal for Jersey, or Connecticut. Who doesn’t love ‘Parisian Style Dining’, i.e. outside, in February…in fucking New Jersey.

          1. Even in Miami, Parisian-style dining only works in select spots.

            Who the fuck wants to bake in the 95 degree sun with 95% humidity while sweating their balls off.

            And yes, even chicks sweat their balls off in Miami.

            1. But, but public transportation and livable spaces and people walking form the organic farmer’s coop with baguettes protruding from the tops of their reusable grocery bags! It’s all just so Euro!

              *creams jeans*

              1. In some places one might be able to live like that. Major urban centers come to mind.

                Miami is NOT one of those places.

                1. My goddamn artisan bread demands that it be able to sit its crusty ass on some artisan fucking cheese and poke its head out of a goddamn reusable grocery purse and see livable fucking walking spaces, furthermore if my fucking artisan bread isn’t bought within 50 yards of expensive public transportation, not that I take the bus ewwww, I’m going to get Richard Florida down there to tax and domain your asses into the new green century. Organic, artisan coop, green multimodal transportation DIY.

                  1. Unfortunately, fucks like this exist, and since they know their shit won’t fly voluntarily, the seek to gather political clout and force everyone to live in their dream neighborhoods.

        2. The difference between “Sustainable Development” projects and strip malls is that I don’t have to pay a huge sum of taxes to support the latter when they sit empty.

  6. It’s not too late to tear down Souter’s house in New Hampshire and build a convention center on the property.

    1. NH has a similar amendment to the one Virginia is contemplating now, so you should probably angle for a highway instead.

  7. Explore, discover and exploit Mother Earth’s natural resources — but Goddess Gaia’s ultra-violent government storm troopers block access…

  8. “One final point. Liberals are deeply worried that after November’s elections social conservatives will swing a lot more weight?and will use it to impose restrictions on women’s reproductive rights. And granted, progressives will find pro-life absolutists unresponsive to any argument they make. But they might be able to start a dialogue with less adamant conservatives by pointing out that questions of eminent domain and reproductive rights are not wholly unrelated. No property is more private than your body (if you don’t own it, then who does?) ? and no one can truly be said to value property rights if he thinks the government should tell you what to do with it.”

    Many points missed.

    – Anti-abortion absolutists do not accept your argument that it is about the mother’s body. They view it as entirely about the egg/fetus/baby’s body.

    – “Liberals” (term rescinded in favor of more accurate form) have no interest in “starting dialogues.”

    Professional politicians don’t want to govern honestly, legally, or in good faith. Professional politicians want to increase their own clout through the expansion of dependency, rabble-rousing, and fear-mongering.

    That’s why this article, though well-intentioned, is talking apples in a subject area that is 100% bricks.

    1. Nice link, Mark.

  9. 1) I hope this amendment passes. Eminent domain abuse is evil.

    2) Around here in Bergen County, NJ, the Liberal solution to poverty is to ban low income housing. I’ve decided to run for town council to fight this trend.

    1. I assume you mean “ban private low income housing” – i.e. small, cheap apartments and basement suites.

      They are usually all for government owned “low income” housing that costs 3 times as much per unit.

      1. Yes, that is what I meant, Aresen.

    2. Eminent domain abuse is evil.

      ftfy

    3. That is genious! Getting rid of poverty by outlawing it!
      Next they will outlaw homelessness and voila, no more homeless problem!
      Then they can outlaw lack of insurance and…..wait…..

      Fucking liberals

  10. The reason the two wings of the Ruling Party aren’t all gung-ho about ED reform is the simple fact that the companies that want to seize property pay far bigger bribes than the homeowners who want to keep their property. Principle has nothing to do with it.

    -jcr

  11. Well, strictly speaking the Repubs are actually moving on the topic. Good for them. It’s nice to see them stand up for what they at least claim are their principles. On the other hand, don’t expect much support from the left. As much as they might claim to want to sick up for the little guy, centralization of power is always going to be a higher value for them.

  12. Liberals ultimately do not want to support eminent domain reform because it gets in the way of that which they really support: greater government power and control. Social justice is not the end for them, it is simply a means to the end of gaining more power/control.

    I’d argue libertarians are the only ones for whom social justice is the true end.

    As for my critique of liberals, please do not construe it as support for Republicans/conservatives in this matter, although they are showing themselves to be nominally better than the Dems.

    1. …they are showing themselves to be nominally better than the Dems./i>

      Until they want a new stadium for their sports franchise or a site for their factory or office building.

  13. “In Kelo, the Supreme Court allowed local governments to confiscate property for no stronger reason than their own speculation that handing it over to somebody else might, at some point in the future, bring in more tax revenue. No proof was required, leaving it up to homeowners to prove why their property shouldn’t be taken.”

    This entirely misses the point about why Kelo was so obnoxious a ruling. Whether a change in ownership from one private entity to another would increase the tax base is irrelevant. Eminent domain was supposed to be used only when private property was needed for a truly public use: a road, a bridge, a school and so on, not to grab from one private citizen and hand it over to another.

    Justice O’Connor observed in the dissenting opinion that if this is a viable reason for taking property, no one is safe in their property ownership.

    We live in a very pleasant and immaculately maintained middle-class community, surrounding several natural lakes. If a developer wanted to raze our homes and put in a high-end golf course enclave, would that be a “public use?” Yes, according to Kelo. And we and our neighbors are a lot better prepared to defend ourselves than the typical blue-collar neighborhood subject to Kelo’s vagaries.

    1. Note that nowhere in the constitution is there an affirmative grant of power enabling the state to take private property without the owner’s express unequvioval consent.

      1. nor shall private property be taken for public use, without just compensation

        Ummm, if the government is relying on obtaining the consent of the person in question, there would be no need for this clause talking about “taking”.

  14. “questions of eminent domain and reproductive rights are not wholly unrelated. No property is more private than your body (if you don’t own it, then who does?) ? and no one can truly be said to value property rights if he thinks the government should tell you what to do with it.”

    First – the phrase “not wholly unrelated” should be replaced with “related.”

    “One can cure oneself of the not un- formation by memorizing this sentence: A not unblack dog was chasing a not unsmall rabbit across a not ungreen field.” – George Orwell, “Politics and the English Language,” http://www.mtholyoke.edu/acad/intrel/orwell46.htm

    Second – The comparison between ED and abortion is fairly strained. You could just as wells say, “no property is more sacred than your body, so the government shouldn’t license people to destroy your body simply because you’re a small person in the womb.”

    1. You could just as wells say, “no property is more sacred than your body, so the government shouldn’t license people to destroy your body simply because you’re a small person in the womb.”

      You could say that, but it would be ridiculous. Furthermore, it’s not “the” womb, it’s a person’s womb. Since the embryo/fetus exists at the discretion of its host, it has no rights.

  15. Eminent domain is so statistly delicious that Israel is doing it to Jewish settlers after encouraging them to buy into the West Bank/Jerusalem.

    “First, the ILA [Israel Lands Authority]justified the seizure with the Land Expropriation Law of 1943, which allows it to assert eminent domain for public purposes, such as military bases and hospitals. Yet the government resold Makor’s land to other Israeli contractors with no appreciable public benefit, and Myr believes authorities did so to benefit political allies. Second, the ILA never developed the larger area, only the land it took from Makor.”

    http://www.jpost.com/Magazine/…..?id=245813

  16. pay attention to Virginia’s debate on eminent domain. The progress toward a constitutional amendment limiting that power has something to gladden the heart of every political type.

    I thought there already was an amendment limiting that power.

    1. Hey man, where have you been? Were you camping out at Best Buy to buy a teevee for roughly the same price it usually is?

      Seriously, I went to lowes out at the waterfront on wednesday and there were already tents set up…

      People are freakin’ stoopid.

      1. Unfortunately, my gas mask’s filter was dirty so I couldn’t risk going to any of the Pepper Spray Friday sales.

  17. Megyn Kelly is a fox news anchor so Im guessing its just a joke.

    This is the same woman who thinks law enforcement pepper spray is a mere condiment.

    I’m not so sure Ms. Kelly wouldn’t agree with that sentiment expressed by Spoof Kelly; she was a zealous prosecutor and clerked under Ruth Bader Ginsburg. I’m quite sure Ginsburg’s special brand of statisty, judicial goodness rubbed off on Ms. Kelly and Kelly has voiced what a profound influence Justice Ginsburg has been on her legal reasoning on many different occasions, going so far as to quash any verbal criticism of Justice Ginsburg when it is voiced to Ms. Kelly.

  18. I thought there already was an amendment limiting that power.

    Apparently, Tulpy Poo, the Renquist Court’s majority opinion (rot in Hell when you get there, John Paul Stevens) failed to take heed of this, or more accurately, totally disregarded it.

    To which Susette Kelo can attest.

    1. Didn’t Rehnquist dissent? Or is it one of those “captain is responsible for the behavior of his crew” moments.

    2. Stevens wrote the majority opinion in Raich, too. What a scumrat.

  19. Until they want a new stadium for their sports franchise or a site for their factory or office building.

    Canada does need more Timbit factories. Perhaps they can outsource this to the USA?

    1. Maybe I missed a formal declaration or something, but have you taken up with the p-brookites and declared war on threaded comments?

      It’s a dangerous game you guys are playing, a really dangerous game.

      Oh, and the more Timbits there are the better.

    2. Well, the ratio of Timmy’s to Starbucks is about one-to-one here.

      My favorite Timbits the Chocolate Glazed, Chocolate Walnut, Double Chocolate, Chocolate Dipped….

      1. Tim Horton’s and hockey on CBC are two compelling reasons to move to Canada.

  20. Maybe I missed a formal declaration or something, but have you taken up with the p-brookites and declared war on threaded comments?

    Started doing it again on that recent 2000 comment thread here. I have thrown off the threaded shackles. “War” is a bit harsh, though; P Brooks is a patriot and an exemplar.

    It’s a dangerous game you guys are playing, a really dangerous game.

    Bah! It’s like going kommando, “with only a thin layer of gabardine separating me from the rest of you.”

    Oh, and the more Timbits there are the better.

    Care to weigh in, Aresen? Are Timbit factories enough in the public interest to warrant eminent domain, a la Justice Kennedy’s legal test?

    1. Well, you boys just be careful now, you hear?

      Keep an eye out for ’em squirrels.

  21. Aresen|11.25.11 @ 2:05PM|#
    “I assume you mean “ban private low income housing” – i.e. small, cheap apartments and basement suites.
    They are usually all for government owned “low income” housing that costs 3 times as much per unit.”

    This isn’t new. The “Progressives” around the turn of the 19/20th century demanded government intervention to clear “slums” where immigrants lived a bunch-to-a-room.
    It probably wasn’t healthy, but it was a place to live and the alternative was/is what we now call “the homeless”.
    Darn people, doing what the want to do! And other people making money at it! Can’t have that!

  22. It probably wasn’t healthy, but it was a place to live and the alternative was/is what we now call “the homeless”.

    I thought this was the zenith operandi of the OWS’er movement.

    Seriously, I went to lowes out at the waterfront on wednesday and there were already tents set up…

    People are freakin’ stoopid.

    At least they weren’t set up for Black Friday (and Thursday) two months in advance in said Tent City. Though I heard on the radio it took significantly less time for Condiment-Pepper Spray-in-a-Can to make an appearance at one of the stores, even if without the gamey pork flavouring.

    1. 5 Black Friday myths perpetuated by the media.

      Yeah loved the pepper spray food quote. I guess Mr. O’Reilly would love to try some of Ol’ Cap’s All Natural Peach Pit Extract Supplement.

    2. “I thought this was the zenith operandi of the OWS’er movement.”

      Wonderful visual images:
      Lefty progressive twits sweeping down on the encampments, screaming about the filth and squalor, demanding IMMEDIATE government action! Lefty O(X) twits claiming camping where they please as speech!
      Who can win this clash of ignorance!?
      At least the immigrants paid the damn rent to live where they pleased.

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  24. I have often wondered what a fair price for the Gov to take your property is. Do they give appraised value-like at least the amount you pay property taxes on? Or are they allowed to just lowball you and get away with it.
    Just asking.

    1. I believe they have to go by the same process as they use to figure property tax levies, ie appraisals. Though they can probably do a separate appraisal immediately before condemnation and, er, influence the appraiser to “round down”.

  25. Didn’t Rehnquist dissent? Or is it one of those “captain is responsible for the behavior of his crew” moments.

    Rehnquist (I always misspell that) did indeed dissent. There was no intent on my part of tarring him by association, and was referring to the SCOTUS by the Chief Justice presiding at that time.

  26. I’m not so sure Ms. Kelly wouldn’t agree with that sentiment expressed by Spoof Kelly; she was a zealous prosecutor and clerked under Ruth Bader Ginsburg. I’m quite sure Ginsburg’s special brand of 925 silver jewelry, judicial goodness rubbed off on Ms. Kelly and Kelly has voiced what a profound influence Justice Ginsburg has been on her legal reasoning on many different occasions, going so far as to quash any verbal criticism of Justice Ginsburg when it is voiced to Ms. Kelly.

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