There seems to be resistance to the Federal Energy
Regulatory’s decision to allow a liquid natural gas (LNG) storage
facility in Fall River.
Let’s be sarcastic to make a point. If the people of Fall River become a
nuisance, powerful utilities can just use Kelo vs. New London, the new
Supreme Court 5-4 ruling on eminent domain, to get the city condemned
for “higher public use.” Certainly it can be argued that providing
natural gas to the entire region is more important than the rights of
any current residential or commercial property owners.
But isn’t a man’s home his castle? This idea has always been part of the
American psyche, having arrived here with English common law that goes
as far back as 1581. Well, I’m afraid it can now be argued that the
property taxes paid by a brand new real castle would provide more value
to your town than your house which, castle-wise, may be short a few
Politicians of Fall River and middle-class homeowners everywhere: unite
against the recent Supreme Court decision that invalidates Americans’
What can we do?
With the resignation of Justice Sandra Day O’Connor, and the expected
retirement of Chief Justice William Rehnquist, the first move should be
to support replacement justices who would vote for property rights as
they did. Then at the first opportunity, one of the liberals on the
court should be replaced with someone who also respects property rights,
and the decision can be reversed.
I know, it’s not that simple. The Supreme Court addresses many issues
about which many of us feel strongly, and while I would argue that
property rights have a much broader impact than those other subjects, I
understand the concern about them that often drives the presidential
selection decision. However, we should be able to agree on a nominee who
believes that “higher public use” of our property is a bad reason to
support local governments and private developers against us ordinary
citizens. Most Americans, conservative and liberal, Republican, Democrat
and Libertarian, native and newly immigrated, know this in the part of
their bones that understand the American Dream. The more sophisticated
among us also know how politicians will be “encouraged” to take our land
and give it to political supporters.
I wouldn’t be surprised to see protesters from all over the country
arrive in New London when the government moves to take the homes and
small businesses there. Haven’t you always wanted to lie down in front
of a bulldozer?
If not, you’ll be happy to know that responsible leaders are looking
into the issue here in Massachusetts. Governor Mitt Romney has expressed
his strong disagreement with the eminent domain decision, and his chief
legal counsel is looking into what can be done to protect Massachusetts
property owners. The U.S. Supreme Court only refused to overrule state
and local government takings; the states themselves can still choose to
honor property rights more than the Court does. Several states forbid
the use of eminent domain for “economic development” except in cases of
true, readily identifiable “blight.”
The Pioneer Institute issued a white paper, authored by the New England
Legal Foundation, a few years ago, with recommendations for
state-initiated statutory protections. Among these: the requirement that
any entity wishing to take private property must issue a “rigorous
cost-benefit analysis that acknowledges the multiple costs of the
taking” to those whose property is being condemned and to society in
general, and a requirement for intensive due process and open records.
This would be followed by “judicial review” of all takings, and “jury
trials for contested relocation payments.”
The good news is that we the people are now aware of what has actually
been going on out there. According to the Institute for Justice, between
1998 and 2002 there were more than 10,000 instances of private property
being threatened with condemnation or actually condemned by government
for private use, across the country. Property rights proponents were
hoping that the Supreme Court would put an end to this: instead, the
takings were validated.
Congress is presently working on bills to address this: Majority leader
Tom Delay stated that he is counting on the perception that “the court
has finally gone too far and the American people are ready to assert
their constitutional authority.” Unfortunately, Minority leader Nancy
Pelosi has already expressed her opposition to legislation withholding
federal dollars for these kinds of takings. But other less partisan
Democrats are expected to back their constituents who prize property
Americans across the political landscape were appalled by the Kelo
decision, which wipes out almost 500 years of common law and could show
up on their own doorstep in the form of a government taking for “higher
public use.” Expect a coalition of right/center/left activists at the
state level to support legislation to save our mini-castles, and plan to
support them by letting your legislators, both federal and state, know
how you feel.
Barbara Anderson is executive director of Citizens for Limited Taxation. Her syndicated columns appear weekly in the Salem
News, Newburyport Times, Gloucester Times, (Lawrence) Eagle-Tribune, and Lowell Sun; bi-weekly in the Tinytown Gazette; and occasionally in the Providence
Journal and other newspapers.