and the
Citizens Economic Research Foundation

Barbara's Column
November #1

Bay State keeping taxes and eminent domain in check
-- at least for now
© by Barbara Anderson

The Salem News
Thursday, November 1, 2007

Today I’m celebrating the Celtic New Year with a resolution to appreciate good things about living in Massachusetts.

I love living in the land of Emerson and Thoreau, no matter how far we’ve come from “self-reliance” and “simplicity.” Autumn in New England is better than autumn in most other places I’ve spent October, especially southern California, especially this year.

This week I get to send my grandtwins size small World Series 07 Champions t-shirts, one red, one pink. Since Nevada doesn’t have its own team, they decided to be Red Sox fans when I bought them the proper baseball caps last summer, one red, one pink.

Our tax burden is nothing to celebrate, but we can at least be pleasantly surprised that the Massachusetts Legislature so far isn’t following its own Democrat governor down the road to economic perdition. No tax increases on business or local option taxes on all of us; no rushing into a new gambling culture; no major new programs requiring money that the commonwealth doesn’t have. We must watch the proposed Family Leave Act, but it seems unlikely that legislators will impose a new tax on working people to create an invitation to abuse their enforced generosity.

Though our per capita tax burden is high, people in other states who call us “Taxachusetts” envy our Proposition 2½ and are usually surprised to learn that we have a flat tax, not a graduated income tax. Though we pay more than in most other states, we aren’t unfairly penalized if we work our way up into higher tax brackets.

Other states are also surprised to find us a pioneer in the charter school movement, and committed to testing all students as we seek accountability from our school systems.

And to our great credit, we have not been a pioneer in the outrageous practice of taking private property and giving it to developers, as has happened elsewhere in the country since the infamous Kelo decision.

You may recall that in late 2005 the United States Supreme Court ruled in Kelo v. New London and Eminent Domain in America that the taking of ordinary people’s homes in furtherance of an economic development plan that could increase a local government’s tax revenues satisfied the “public use” requirement of the Fifth Amendment.

My already well-developed distrust of government grew into a giant concern about the ongoing viability of the American Dream. In the expectation that property rights in Massachusetts would also soon be assaulted, Citizens for Limited Taxation filed legislation to protect owners from those who might try to repeat the Connecticut outrage here. The legislation allows taking property only for the use of “the public at large, or by public agencies.” It states that “property shall not be taken from the owner and transferred to another on the grounds that the public will benefit from a more profitable private use”.

More pleasant surprise: there has been no immediate need for a new law. As far as I know, Massachusetts isn’t following in Connecticut’s disgraceful path.

Last week I attended a panel discussion on “Kelo” at Boston College Law School, organized by its chapter of the Federalist Society for Law & Public Property Studies. I was a guest of the Pioneer Institute, and I’m really glad I went.

The three panelists were Scott Bullock, who was co-counsel arguing against eminent domain in Kelo v. City of New London before the Supreme Court; Michael Greve, a Boston College Political Science professor who studies at the conservative American Enterprise Institute; and Zygmunt J.B. Plater, a Professor of Law at BC Law School. It seemed at first that all three would be opposed to the Kelo decision, but to my astonishment Professor Greve said he believed “it was rightly decided.”

He identified himself as a “member of the vast right wing conspiracy” and “a libertarian,” and I almost had a heart attack. He cited some constitutional reference that he said allows this kind of taking. Then things got really bizarre: Zygmunt Plater, right out of central casting for bow-tied liberal college professors, said that in fact Kelo was a right-wing plot to make Americans hate government.

My hand was waving in the air. I assured the student audience that every right-wing conspiracy conservative and libertarian I know is horrified by the Kelo decision. Also mentioned that I didn’t think constitutional drafter John Adams would approve the government taking his farm in Quincy and giving it to Walmart to maximize the city’s tax revenues! Professor Greve said he was speaking only for himself, not AEI. Professor Plater said that libertarians wouldn’t support eminent domain even for airports. And I thought, it’s a wonder college students can salvage enough common sense to function in a democracy.

Scott Bullock told us about other eminent domain cases: two small seafood companies taken in Texas to make room for a private marina; eight homes and businesses taken in Missouri for a shopping mall, etc. But here in Massachusetts, private property rights survive. Maybe we shouldn’t leave here after all! Love those autumn leaves.

Barbara Anderson is executive director of Citizens for Limited Taxation. Her column appears weekly in the Salem News and Eagle Tribune, and often in the Newburyport Times, Gloucester Times, and Lowell Sun; bi-weekly in the Tinytown Gazette; and occasionally in the Providence (RI) Journal and other newspapers.