Weasel Words and The Kelo Decision 

John D’Aloia Jr. 

John D’Aloia Jr. is a retired navy captain and a submarine commander. He is a columnist for several newspapers in Kansas.

 

Legislators around the country, from Congress to state capitals to local governments, are jumping on the Limit-the-Use-of-Eminent-Domain Bandwagon in the wake of the U.S. Supreme Court’s Kelo decision. (In Kelo, the court upheld the theft of people’s homes in New London, Connecticut, so that the land could be given to private developers.)

Such legislative activity is taking place in Topeka. Several legislators, representing both houses and both parties, are working on legislation to prevent a unit of government from succumbing to blue-sky promises by developers, contractors, and big-dollar campaign contributors, and taking land from one private party to give it to another private party, all the time dreaming of the extra tax revenue that will result. The economic development scheme is a bastardization of the entire concept of eminent domain, the rationalization of the government theft straight out of a socialist’s playbook.

That legislators are loath to give up their eminent domain power over private land for the benefit of their special interests is demonstrated quite clearly in the draft Senate Concurrent Resolution being circulated by Kansas State Senators Schmidt (R-Independence) and Goodwin (D-Winfield) for the adoption of an amendment to the Kansas Constitution. The wording is such that it creates an aura of “goodness” that can be used for talking points to convince the electorate that the drafters and supporters are champions of freedom, that they recognize that private property rights are a keystone to all the rights inherent in our constitution, that they want to change the constitution to protect landowners from the depredations of a rapacious government. Sadly, after all the good words, they sneak in eight words that create a fatal flaw. Their fingers are crossed behind their backs.

The smokescreen words in the draft are:

The taking of private property with the intent to or in anticipation of selling, leasing, or otherwise transferring any interest in the property to any private entity is not a valid public use and is prohibited.

Does not this all sound so good, so protecting of private property rights, so limiting on the use of eminent domain for purposes not in consonance with the historical definition and understanding of the term “for public use”? Read on, past “is prohibited.” Tacked on, almost as if it were an insignificant afterthought, is the fatal flaw phrase “. . . except as the legislature may provide by law.”

What is the value of the constitutional amendment if it gives the legislature the ability to effectively rewrite the constitution just by passing a law with a simple majority vote? The constitutional amendment with such an exception is meaningless. The phrase becomes a full employment act for lobbyists and a campaign contribution lodestone as developers and contractors attempt to buy exceptions for their pet project. If this amendment had been the law of the state when NASCAR came with its hand out, is there any doubt that the legislature would have jumped at the opportunity to pass an exception? I can see the money flow now.

Any constitutional amendment prohibiting the use of the coercive powers of government to invoke eminent domain to steal a person’s property to give to another person for whatever reason must be absolute, period.

The idea has been broached that the concept of “willing seller” should be included in whatever is done to protect landowners from the use of eminent domain for economic development purposes. Great care has to be given to so doing, or in fact using the “willing seller” concept in any law in which the government is the buyer or stands to gain tax revenue or increased power over society by the transaction. There is a sorry, sad record in the real world of what happens when a government agency covets property, but the enabling legislation says that purchases must be from “willing sellers.” More than one person who did not want to sell was forced to by government harassment until his only course left was to sell--which at that point he was classified as a willing seller because he did not fight the land grab in court.

Land transactions for any reason must remain in the open market place between willing sellers and willing buyers, without government twisting arms or creating unbearable disincentives to a person saying “not interested in selling.” It is a freedom every landowner must have.     *

“The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.” –Will Rogers