and the
Citizens Economic Research Foundation

Barbara's Column
July #1

Activist voters are needed to reverse faulty decision
© by Barbara Anderson

Second of two parts

The Salem News
Thursday, July 7, 2005

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 turrets.

Politicians of Fall River and middle-class homeowners everywhere: unite against the recent Supreme Court decision that invalidates Americans’ property rights.

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 rights.

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.