Friday, 23 October 2015 16:17

More on Eminent Domain

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More on Eminent Domain

John D'Aloia Jr.

John D' Aloia Jr. is a retired navy captain and submarine commander. He writes from Kansas.

I have been asked why I devote so many column inches to the topic of eminent domain. Good question. A glib answer, paraphrasing Will Rogers, would be that it is so easy to churn out words about eminent domain--politicians and judges provide more material than I could ever use, or editors would give me space to fill. There is a more sober response. The eminent domain attitudes and positions taken by politicians and others involved in the governance of the country give you a direct insight into what they think of individual liberty, freedom, and limited government. Their stand lets you know if they honor the principles of the Declaration of Independence and the Constitution. Their stand lets you know if they believe they have absolute control over you and your property. Strip away all the other rhetoric. Their position on eminent domain lets you know if you are dealing with a socialist who believes that government is omniscient and omnipotent.

Kansas Governor Sebelius, in campaign appearances, has said enough on eminent domain to place her squarely in the socialist fold. She believes that local governments should be able to use eminent domain for economic development. As soon as you hear her, or anyone else, advocate such use, they have labeled themselves as an elitist, someone who believes that they know better than you how your property should be used. Be assured that they will have no qualms about taking your property to put into action their beliefs and goals. In so doing, they ignore the Constitution and founding principles. No wonder they strive so hard to convince the country that the Constitution is a living document. As long as they get to define what it means today, they get support and cover for what they want to do or to whom they want to funnel tax dollars. It matters not to them what the Constitution actually says in plain language or what it meant to the Founding Fathers.

Historically, eminent domain has been limited to a public use, that is, for the acquisition of land to be used for a public function, such as a road, or bridge, or school that will serve the entire community. In my reading, everyone appears to acknowledge that this is a legitimate use of government power. Those who want the power to steal your land for their own aggrandizement have been able to morph the definition of public use into public purpose, opening up the use of eminent domain for increasing the tax base, for increasing tax revenues, for economic development, for the remediation of blight.

Ah, blight. It was so refreshing to read the Ohio Supreme Court's verdict in the Norwood case. The court, establishing a precedent that is sure to be cited in case after case, reversed the lower court's decision that the City of Norwood could steal land based on a blight determination. The court demolished any notion that blight remediation was a public use. The decision's Syllabus made seven statements, too long for repeating verbatim. The points made included (1) the position that a taking would provide an economic benefit to the government, standing alone, does not satisfy the public use requirement of the Ohio constitution; (2) the use of "deteriorating area" as a standard for determining whether property is subject to eminent domain is void for vagueness; (3) the use of "deteriorating area" as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property, rather than the condition of the property at the time of the taking; and (4) the provision of law that prevented the courts from getting involved after the compensation had been deposited with the courts but prior to appellate review violated separation of powers and was thus unconstitutional.

And the final court's final comment before rendering its verdict gives hope that courts can actually read and understand constitutions and render strict interpretations. The justices wrote:

Although the judiciary and the legislature define the limits of state powers, such as eminent domain, the ultimate guardians of the people's rights, as evidenced by the appellants in this case, are the people themselves.

The justices must have had Wendell Phillips (1811-84) in mind. Attributed to Phillips:

Eternal vigilance is the price of liberty-power is ever stealing from the many to the few. . . . The hand entrusted with power becomes . . . the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot . . ." *

"I think we have more machinery of government than is necessary, too many parasites living on the labor of the industrious." --Thomas Jefferson

Read 3351 times Last modified on Friday, 23 October 2015 21:17
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