L. Neil Smith's
Number 311, March 20, 2005

"This is your government, people."

I'm The Government And I'm Here To Steal Your Property
by Charles Stone, Jr.

Exclusive to TLE

The folks at Wal-Mart are at it again. In Alabaster, Alabama; North Bergen, New Jersey; Denver Colorado and Ogden Utah, America's Store is using the power of government to do its dirty work when it comes to acquiring property upon which to build new stores.

To be fair, they're not the only miscreants. Costco has pulled similar stunts in Lancaster and Cypress, CA; Maplewood, MO; Lenexa, Kansas and Port Chester, New York. Walgreen's in O'Fallon MO; Home Depot in Pittsburg, KS and East Harlem, New York; Target Stores in St. Louis, MO

Unfortunately, that's not even a good start on the total number. The Institute for Justice, which does a great job of keeping track of these things, says that as of 2002, there were over ten thousand cases of eminent domain abuse in 41 states. And they still keep on coming.

In most cases, they justify this thievery on the basis of the Fifth Amendment to the Constitution which states, in part "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The hang-up is in the phrase "public use" and how it is defined.

To many folks, it is reasonable for the government to have the power to take private property when it is needed for a road or power transmission lines or a new government building. I would prefer that those things be in the private sector, but as the Founding Fathers felt that such things should be publicly owned, I'll defer.

The problem arises when government agencies, usually at the behest of large developers, redefine "public use" to "public good," thus immensely broadening its scope. The "good" can be made to include increased tax revenues, provision of jobs, the wonderfully obfuscatory "urban redevelopment," even providing recreation. And boy, do they love it and are they ever arrogant about it.

An attorney for Costco once stated that property in Lenaxa KA, that he wanted condemned was "not much of a neighborhood, anyway." Charming.

A top Georga Republican Senator says "If Chatham County (GA) needs a new soccer complex, a contractor could build it with the agreement that they receive the concessions rights for 10 years. At the end of the agreed time, the soccer fields would be owned and operated by the local government just as if it had been built by the traditional method." Of course he doesn't say why the government is building "soccer fields" in the first place. Some Republican.

"Quality of life is something that is shared," said Robert Liberty, a former president of an ardent Oregon pro-planning group, "A golf course is not. A four-car garage is not. One of the best things about the planning process is that it makes a better community for everyone, regardless of income." Of course, he is among those who make the decisions. Those who are not planners will just have to take what they are given.

The executive director of the same group opines "We could have scattered development in the countryside and harmful, unexpected development in neighborhoods," No matter the rights of the property owners, The State must be in charge and every use of property must be rigidly controlled. Thank you, Kamerad.

The Georgia case is especially troublesome because it is being pushed by Republicans who now control both houses of the legislature and the governor's mansion. Sounds like the vaunted claims of the GOP to stand in support of "limited government" is pure Georgia cow floppery.

The new law would allow governments to form partnerships with private entities to build and operate all those things that could possibly serve a public need,. Iincluding such "governmental" facilities as parking structures and commercial office buildings, as well as roads and bridges.

They would have power to extend public debt for the projects and to provide the developers with grants or loans of taxpayer money. It would also give local governments wide discretion to make deals with developers as to how projects would be financed. They would also have the ability to condemn "any property" they felt was needed.

Bet the property owners of Georgia are thrilled at how the last election turned out.

William Pitt the Elder in his lecture to the House of Commons in 1763 said "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement." The Founders used this philosophy to guarantee the property rights of Americans when they framed the Constitution.

They had it right, of course and if the Supreme Court had left things alone we wouldn't be saddled with these problems. Unfortunately, an activist Court in 1954, in a case called Berman vs. Parker, had the result of giving governments a virtual free hand with regard to eminent domain.

Justice William O. Douglas, writing for a unanimous panel stated:

"The experts concluded that if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were unsanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums - the over-crowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only a palliative."

And in an appalling repudiation of Constitutional principle:

"If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way."

In effect, they decided that nearly any reason government could come up with could be construed as a legitimate function of eminent domain. Government agencies could now declare an area bighted and it would become part of the agencies redevelopment area. Tax revenues from the affected area would now go directly to the agency, not other divisions of government.

The full text of the decision can be found at: [this link].

In a Boston Globe article of Sept. 30, 2004, Jeff Jacoby lamented:

"Alas, what the Supreme Court in the 18th century found unthinkable, the Supreme Court of the 20th century made lawful. The reckless deployment of eminent domain—the use of force to dispossess property owners—is nothing less than an assault on the American Dream."

Still, Costco, Wal-Mart and others make the case that without the use of eminent domain, they couldn't secure the land they need for expansion and further development. Of course what they really mean is that they couldn't secure the land without paying the price the property owner wants or might even be forced to look elsewhere if the property owner was unwilling to sell at any price. Government guns certainly tilt the balance in favor of the corporations.

© 2005 Charles Stone, Jr.


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