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States Fighting Against Eminent Domain and the Kelo Ruling

Ross Kaminsky - 8/10/2005

Alabama Governor Bob Riley and the state legislature have made Alabama the first state to ban the use of eminent domain to transfer private property to other private property developers. According to the Washington Times, 16 other states have introduced similar legislation and 7 further states are working on it. This is a great start in defending our most basic economic rights, but we must not become complacent or allow our legislators to do so.

The temptation to use eminent domain takings for economic development is greatest at local levels, such as the thieves on the New London, CT city council who were the cause of the Kelo case being necessary.

People like this have no understanding of the importance of economic rights, nor any interest in the Constitution's clear requirement that eminent domain takings be for "public use".

I have previously pointed out some examples of towns rushing to act under the Kelo ruling, and The National Law Journal points out a couple more:

"In Lake Zurich, Ill., town officials are now moving to condemn the property of five owners to clear way for a private development, despite requests to hold off on condemnation. In Arnold, Mo., city officials applauded Kelo, saying it will help push forward plans to raze 30 homes and 15 small businesses to build a Lowe's Home Improvement store and a strip mall.

"And in Baltimore, officials see the ruling as a green light to seize more than 2,000 properties for a biotech park and new residences."

The depth of their willful misunderstanding is adequately represented by an attorney quoted in the same article:

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"I think the property rights advocates are just way off base," said attorney Mark Zausmer of Zausmer, Kaufman, August & Caldwell in Farmington Hills, Mich., who has represented municipalities in eminent domain disputes in Michigan.

"I think that the idea that economic development is not a function of government is ridiculous ... .[Eminent domain] is just a tool for economic development," he added.

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Mr. Zausmer, like most advocates of abuse of eminent domain, completely misses the point. Whether or not economic development is a proper function of government is irrelevant. What matters is whether the methods used by government to attain its goals are constitutional.

To give an analogy: Protecting citizens from discrimination might or might not be a legitimate role of government. But if you assume that it is, that does not mean you could then imprison someone for making a racist comment in violation of his First Amendment rights.

As I've said before, politics must not be utilitarian. A desirable result does not justify taking any path to get there....and a new strip mall at the expense of people's homes is far from a desirable result.

I don't believe I'm exaggerating when I say that the same type of thinking that gets us the Kelo decision, i.e. an unprincipled thought process which aims for a result regardless of the obvious nature of the crime committed to get there, is the type of thinking that got us all of the brutal dictators of the 20th century, from Mao to Hitler to Mugabe (who unfortunately has not been assassinated yet, but I digress....)

So, while we applaud Alabama and other states going down the same road, we must pay particular attention to our local governments to make sure they do not steal people's houses before the state government can stop them.