Uncivil Rights

Thomas Jefferson on private property:

The right to procure property and to use it for one's own enjoyment is essential to the freedom of every person, and our other rights would mean little without these rights of property ownership.

"The true foundation of republican government is the equal right of every citizen in his person and property and in their management." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:36

"To take from one because it is thought that his own industry and that of his father's has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association--'the guarantee to every one of a free exercise of his industry and the fruits acquired by it.'" --Thomas Jefferson: Note in Destutt de Tracy's "Political Economy," 1816. ME 14:466

"By nature's law, every man has a right to seize and retake by force his own property taken from him by another by force or fraud. Nor is this natural right among the first which is taken into the hands of regular government after it is instituted. It was long retained by our ancestors. It was a part of their common law, laid down in their books, recognized by all the authorities, and regulated as to circumstances of practice." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:104

"Charged with the care of the general interest of the nation, and among these with the preservation of their lands from intrusion, I exercised, on their behalf, a right given by nature to all men, individual or associated, that of rescuing their own property wrongfully taken." --Thomas Jefferson to W. C. C. Claiborne, 1810. ME 12:383

"Nothing is ours, which another may deprive us of." --Thomas Jefferson to Maria Cosway, 1786. ME 5:440

Private property was held as a sacred right by Thomas Jefferson and our founding fathers. It was a sharp ideological contrast to the belief held by the Europeans at the time. Freedom, true freedom, was born from the knowledge that the property you owned was yours, and no one else’s; no one, no government, could take your property by will, by law, or by force. This was a defining moment in our short history as a nation. It differentiated us from the rest of the world.

Yet today, we are facing one of the biggest fights in our country’s history over this very basic, very sacred, right to private property. It is a fight not waged against the left or the right but a combination of both whose lust for power and money has corrupted their interpretation of our constitutional right to private property.

Today, politicians and developers are hand-in-hand, utilizing the government’s power of eminent domain to take private property from a citizen and then turn that property over to a private developer, all for the reason of increasing the tax base. There is no reasonability test, no assurance that taxes collected will be increased, no consideration for our constitution, all for economic development.

It is occurring all over this country, and now the most important case is before the Supreme Court in Kelo v. New London. From The Boston Globe, by Jeff Jacoby, Scott Bullock of the Institute for Justice puts the stakes bluntly:

‘‘Every home, church, or corner store would produce more jobs and tax revenue if it were a Costco or a shopping mall,’’ he says. If state and local governments can force a property owner to surrender his land so it can be given to a new owner who will put it to more lucrative use, no home or shop in America will ever be safe again.”
When Bullock argues that New London wants to throw people out of their homes for the sake of ordinary economic development, Justice Ruth Bader Ginsburg asks why that’s a problem. New London is depressed, she says; what’s wrong with trying to ‘‘build it up and get more jobs?’’ If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can’t it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn’t that enough to satisfy the Constitution’s ‘‘public use’’ requirement?
It is a depressing colloquy for anyone who believes that property rights are fundamental to liberty. But there is worse to come. Justice Sandra Day O’Connor presses Wesley Horton, the lawyer for New London, on whether eminent domain can really be deployed to condemn any property that could be put to better use.
‘‘For example, a Motel 6,’’ O’Connor says. ‘‘A city thinks, ‘If we had a Ritz-Carlton, we’d get higher taxes.’ Is that OK?’’
‘‘Yes, that’s OK,’’ Horton replies.
Justice Antonin Scalia: ‘‘You can take from A and give it to B, if B pays more in taxes?’’
Horton: ‘‘Yes, if it’s a significant amount.’’

Got that? Anyone’s property can be taken by eminent domain if the government identifies another owner who could use it to earn a higher profit. New London isn’t alone in making such an outrageous claim. In planning commissions and redevelopment authorities nationwide, the Fifth Amendment’s ‘‘public use’’ requirement has been ignored for years. The question now is whether five Supreme Court justices will agree to kill off this piece of the Bill of Rights for good, or to bring it back to life. The fate of more than just seven Connecticut homeowners is riding on their decision.

Here in Aurora, Illinois, we have a candidate running for mayor, Richard Irvin, who has continually called for utilizing eminent domain to take private property and then give that property to private developers, all for economic development and increasing the tax base. He has called these properties “economically blighted”. We also have an alderperson, a supporter of Mr. Irvin, who has called for the use of "amortization of non-conforming uses." That means she wants the City government to mandate the down zoning of particular properties if the homeowners fail to do so after a certain amount of time, using the idea of financial compensation the amount of which slowly diminishes as time goes bye.

I had emailed Mr. Irvin and asked him about his stance on private property and the use of eminent domain. I did this because Mr. Irvin is an attorney and this issue concerns the constitution. Mr. Irvin did not respond to my email, but a campaign worker did on his behalf:

Richard Irvin shared your email with me regarding the use of eminent domain in Aurora. I requested an opportunity to respond and with Mr. Irvin’s approval I would like to offer the following response.

Your concern about 5th Amendment Rights and “takings” of personal property are indeed basic and protected rights but I could not disagree more with your characterization of the use of eminent domain as “reckless, fiscally irresponsible, and constitutionally wrong”. Your argument is fundamentally wrong in that you are relying on only one aspect of the workings of our federal common law system. Both “law” and “precedent” must be considered by the courts in determining any ruling. It is the precedent component that justifies the use of eminent domain for the uses that Richard Irvin has described.

The following text is from the Oxford Companion to the Supreme Court of the United States, Kermit L. Hall., and is a good summary of the precedent that allows this use:

Case - Berman v. Parker1954 decided by vote of 9 to 0. A Washington D.C. urban renewal statute allowed the city to condemn land and sell it to private developers, who would redevelop it according to the renewal plan. The plan included not only slum eradication but also beautification projects. A landowner challenged the statute , mainly on the ground that, under the Takings Clause of the 5th Amendment, the condemnation was not “for public use.” The Owner argued unsuccessfully that there was no public use because the land was sold to a private developer and for the purpose of beautification. The Supreme Court upheld the statute.

The decision is important in two ways. Firstly, it established that aesthetics are a legitimate public purpose, for which government may regulate and condemn land. This principle has encouraged increased governmental intervention to achieve aesthetic and environmental goals. Second, Berman made clear that the phrase “public use” in the Takings Clause did not mean land condemned had to remain in governmental ownership or be used physically by the public. The Court seemed to hold that eminent domain might be used to advance any goal that government could pursue under any of its powers. Subsequent decisions have confirmed this broad understanding of Berman. Thus, under the Takings Clause, “public use” means only public purpose.

That is the technical/legal side of the issue and I can assure you that Mr. Irvin did not incorporate eminent domain into his economic plan without regard for the law and more importantly the probability of practical and effective use of that tool. Hundreds of millions of dollars of redevelopment have been done in major cities such as Indianapolis utilizing eminent domain as the catalyst for that revitalization. Richard has meet with attorneys, financiers, and the mayors who have successfully utilized eminent domain. This is far from reckless, it is actually a common and proven strategy.

We, citizens of Aurora, have become accustom to avoiding legal confrontation as a result of our timid legal council and lack of mayoral leadership in this area. There is clearly a leadership vacuum and I believe Richard Irvin is the one to fill that void. He is creative with his solutions and has the courage to see them through. It is clear that none of the other candidates has anything comparable to offer and the issue of eminent domain and economic development are a perfect example. Since Richard Irvin revealed his economic plan not only have the other candidates taken much of it as their own but they city itself through the AEDC has endorsed the use of eminent domain as part of the latest downtown strategy. Richard leads on this and many other issues.

One problem with comparing this case with Aurora is that in Berman v. Parker some of the conditions of these properties do not exist here in Aurora. For example, the area to be redeveloped was described thusly: 64.3% of the dwellings were beyond repair, 18.4% needed major repair, 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, and 83.8% lacked central heating. This is hardly indicative of the situation here in Aurora. Aurora does have some vacant buildings, are they blighted? No. Are they bringing in the highest amount is taxes possible for that parcel? Probably not. Is that worth the price of violating someone’s constitutional right? Of course not.

Do the ends justify the means? Is violating someone’s right and taking their private property worth the potential of increased taxes? What happened with fiscal responsibility of government? Where does it stop? What about “intellectual property”? How soon will it be before someone claims they can put your ideas to better use and utilizes eminent domain to take your right to that intellectual property away from you?

What “unintended consequences” may we see if Kelo v. New London is upheld? Property values will decrease due to the “risk” of owning property, therefore, the property taxes will decrease also. This reduction in property value and the resulting decrease in property taxes will motivate governments to increase those taxes to offset those losses. The knowledge that property can be taken from you at any point in time will reduce property ownership. Developers will reap huge financial rewards by surveying existing neighborhoods for viable development properties and then taking them by force for development. There would be no limit to the number of times a particular property can be taken and redeveloped, as long as there is a potentially higher financial gain.

The left loves to talk about how the rich are getting richer while the poor are becoming poorer. In the case of eminent domain, if the Supreme Court upholds Kelo v. New London, rich developers and politicians will become richer while they walk all over the private property rights of those who have worked hard enough to own property and begin to live the American Dream, all with the help, consent, good tidings, and good riddance of the United States Supreme Court.

Maybe a Taco Bell would bring in higher taxes than Justice Ruth Bader Ginsburg's house...

Cross Posted at The Wide Awakes and Blogger News Network.