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Property rights up for grabs

By Henry Lamb
web posted October 18, 2004

Be it ever so humble, there's no place like home - unless the government wants it.

Until 1954, a man's home was his castle, where no one could enter without an invitation or a warrant. Then, under the watchful eye of the U.S. Congress, the city of Washington, DC decided to exercise eminent domain to take land from poor blacks to redevelop a blighted area. The action was upheld by the Supreme Court [Berman vs. Parker (1954)].

The city of Detroit expanded on the idea in the 1980s, and exercised the power of eminent domain to take the homes and businesses of 4,200 people so General Motors could build a new automobile plant in an area known as "Poletown." The action was justified on the basis of increasing tax revenue, and stimulating the local economy. The Michigan Supreme Court upheld the decision.

Soon, municipalities across the country began using the new-found power of eminent domain to take land from one private owner and sell it to another private owner to increase tax revenue and stimulate the local economy.

In July, the Michigan Supreme Court reversed the Poletown decision, which effectively eliminates the practice in Michigan.

The city of New London, Connecticut used eminent domain in 2000, to take 90 acres of private river-front property in an effort increase tax revenue and stimulate the local economy. Most of the owners acquiesced, but ten owners said no, and their case has now been accepted by the U.S. Supreme Court [Kelo vs. City of New London].

Bruce Fein, a constitutional lawyer, argues passionately in a Washington Times article, that the power of eminent domain applies to the middle class and wealthy in new London, Connecticut, just as it applies to the poor blacks in Washington, DC.

But he misses the point.

Government is authorized to take private property by the Fifth Amendment of the U.S. Constitution for "public use" - not for public benefit. What is legitimate "public use?" Pretty good guidelines are offered in Article I, Section 8 of the U.S. Constitution: "...forts, magazines, arsenals, dock-yards, and other needful buildings...."

If government remains empowered to take private property for whatever it perceives to be a public benefit, the concept of private property will vanish; the United States will be no different from a communist nation where government decides how all property must be used.

Take, for example, the Everglades Restoration Project in South Florida. Government has taken thousands of acres of private property, uprooting hundreds of private owners, in order to develop a project, not for government use, but which government says will result in a public benefit. The so-called benefit being the restoration of the Everglades to its "natural" condition.

Like the people in New London, most of the affected people gave up, when the government declared its intention. Some who fought spent their life savings in legal fees, only to see their homes bulldozed into oblivion. There is one man, however, who still believes that his humble home is his castle. He has issued no invitation to the government, and he believes the eminent domain proceeding to take his land goes way beyond the power granted to government by the Constitution.

The government wants Jesse Hardy's 160 acres, not for a "...needful building," but to restore a "sheet flow" of water across the Everglades. Ironically, according to engineering studies, the sheet flow will not touch Jesse's land because of its elevation. But they still want his land because, according to Nancy Peyton of the Florida Wildlife Federation , which has promoted the project from the beginning:

"It is remote from any public facilities. It is remote from schools and from even a supermarket. It is not a good location for people to be, and the best and highest use [of Jesse's land] is to restore it."

Neither Nancy Peyton, nor the governments of Florida or the United States should have the power to take private property from an individual because they decide that "...it is not a good location for people to be," or because they want to use the property for some purpose that suits their vision.

Nancy Peyton, and the governments of Florida and the United States should heed the words of founder, John Adams, who correctly declared that:

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is no force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist." 

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.

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