Thinkin’bout Stuff

I’m not a lawyer, don’t even play one on TV, but I believe I have a fairly good intrinsic understanding of what is right and what is wrong.

Taking someone’s property through force or coercion is stealing, with or without “just compensation”. However, there are times when the greater good can outweigh something that is essentially wrong. For example, it could be argued (and has been) that taking private property to widen a road to alleviate traffic congestion is a reasonable application of eminent domain and outweighs the rights of property owners who will lose their homes. Seems unfair, and “just compensation” probably doesn’t come close to compensating for the loss of a home, a neighborhood, or a family business, but at least there is a real public need that is being addressed. (Visit here for much more info on The 5th Amendment and eminent domain).

Recently, however, the definition of “public use” has been stretched far beyond what is fair, and you should be angry and concerned.

In Kelo v. City of New London, many are blaming the US Supreme Court for expanding the definition of “public use” to include the taking of land to turn it over to private companies or developers as long as the land is utilized for public purposes, which could include just about anything.  For example, if GM wants to build a factory and indicates it will bring jobs to an area, that’s “good for the public”, so the government can take land from a homeowner and sell it to GM.  Is that OK with you?  If not, too bad.  From The Washington Times February 20, 2005:

… from just 1998 to 2003, there were 10,000 reported cases of cities and states condemning or threatening to condemn homes and businesses to make way for private companies to expand.

In the early 1980s, the General Motors Corp. persuaded the city of Detroit — reeling from recession — to condemn a neighborhood called Poletown (due to the many Polish immigrants there) and sell it cheap to GM to build an auto factory.
    The Michigan Supreme Court held the condemnation was legal: If the government declared a condemnation would benefit the public, the courts would not stand in the way. In a whirlwind of litigation that lasted only a few weeks, neighbors watched as their community was pulverized.

The key here is “If the government declared a condemnation would benefit the public, the courts would not stand in the way.”  The courts have taken the position that it is up to the legislature to determine when land should be taken for public use, how to define public use, and where to apply it.  The courts will get involved in resolving issues of “just compensation” after the government declares a public need and takes the land. From the Kelo v. City of New London ruling:

… while the city is not planning to open the condemned land at least not in its entirety to use by the general public, this Court long ago rejected any literal requirement that condemned property be put into use for the . . . public. Rather, it has embraced the broader and more natural interpretation of public use as public purpose. Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. 

Should the courts get involved in deciding when something is for private versus public use? Perhaps, but to a large extent, the courts have gotten us into this misinterpretive mess:

Until the 1950s, courts held the narrow view that public use meant literally “use by the public”: taken property could not be turned over to private owners, even if the public would benefit thereby. The modern, broader view, expressed in Berkman v. Parker (1954), is that public use means “public advantage” or “public purpose” and permits takings even when the property is subsequently conveyed to new private owners.

So the current court is essentially following flawed precedent set by courts of the 1950’s, which essentially means the only way out of this mess may be through legislation {{shudder}}.

I suppose we can hope that the US Supreme Court will reverse itself in some future decision when faced with Auntie Em’s farm being condemned for use as a private golf course that will improve the view of the “outs” while they stand around the borders of the course watching the “ins”; but the Court seems to like to do things incrementally, which would mean that, even under the best of circumstances, it would take years to fix this problem while people continue to have their land stolen by state and local governments looking for a quick fix to years of poor planning and management.

Do a search on “eminent domain” and you will find there are currently pending injustices that would, at least on the surface, appear to show evidence of an abusive government stealing land from home owners to provide a windfall to private corporations under the guise of “public use”.  Hannity & Colmes (visit the link to see video) have been shining a spotlight on several of these in their “It could happen to you!” series, including the plight of the Halper family, about to lose the farm their family has owned for more than 80 years because the local government wants it for “open space”. No actual use has yet been defined, they just want it. How about if the town you lived in decided they just wanted your land and would decide what to do with it later, would that be OK with you? This is nuts! 

So we can’t trust “the government” (local or state) to apply the concept of “public use” fairly, the courts appear reluctant to intervene, and while we all shake our heads and say “this is just plain wrong”, people keep losing their homes.

What can we do? We need the US Congress to clarify the definition of “public use”; we need the US Congress to get off their butts and stop this spreading injustice; we need to make sure our representatives in congress (both the Bouse and the Senate) hear from us and understand that this is not acceptable and we will hold them accountable if they do not act on behalf of the people, protecting us from overzealous local and state politicians that believe they can get away with stealing land for private use as long as any hint of a public use can be woven into the lie.

More to come… 3:30am here so time to say goodnight…