Friday, August 26, 2005

Objecting To How DownsizeDC.org Is Fighting Kelo

Everytime we, at DownsizeDC.org, send out a message to our list, urging folks to support our amendment to S. 1313, a Congressional bill that responds to the Supreme Court's Kelo/eminent domain decision, I get email from someone who says something along the lines of, "The federal government's involvement in this matter ( both the U.S. Congress and the U.S. Supreme Court) is another violation of the 9th and 10th amendments of our Constitution. Let's not fall into the trap of trying to right an egregious wrong with another wrong."

Well, here's my response...

I understand your concern. No issue that we’ve tackled has prompted so many questions or concerns by people who respect the Constitution or federalism in general.

It is our position that the Supreme Court should never have taken this case – but they did. Once they did, it was our position that they had no business changing the definition of the takings clause – but they did.

It is our position that this is a state level issue and several states have better laws on this subject – those should be enforced. It is the reality that many judges and local politicians believe to the core of their being that five black robes is the law of the land, and that reality is being carried out not only in New London, CT, but as Reason’s Hit & Run blog has pointed out, other “jurisdictions that are moving quickly to condemn homes and businesses in order to replace them with shopping centers, condos, etc.,” include

• Arlington, TX condemning homes for a new Cowboys stadium, “and in the wake of Kelo officials "filed condemnation lawsuits against some holdout property owners this month.”

• “Sunset Hills, Mo…., voted to condemn a cluster of homes to make way for a shopping center, despite the pleas of some elderly homeowners who said they had nowhere else to go and no desire to move.”

• “Officials in Oakland, Calif., evicted a tire shop and an auto repair shop to make room for a development that is part of Mayor Jerry Brown's plan to bring 10,000 residents to the central part of the city.”

• “Santa Cruz, CA, where city officials started legal action this month to seize a parcel of family-owned land that holds a restaurant with a high Zagat rating, two other businesses and a conspicuous hole in the ground and force a sale to a developer who plans to build 54 condominiums. The owner of the so-called ‘hole in the ground’ had ‘proposed hard-to-build, idealistic plans, involving alternative energy sources and unusual designs, that have never gotten off the ground’; his family says he's being penalized for trying to build something special on his property. The city says that its condemnation ‘is moving forward’ because ‘The Supreme Court gave us reassurance of our ability to proceed.’”

And that last line should make clear why something has to be done. Federalism is just one part of the separation of powers our founders gave us. The checks and balances of the three branches are another. And the federal government needs to pass a law that forbids the use of federal funds in an eminent domain decisions, which is what S. 1313 purports to do.

But in our opinion, it doesn’t go far enough – nowhere near. If the Supreme Court has given localities the reassurance of their ability to proceed to redefine the takings clause so that the government can confiscate private property for the benefit of big developers who will generate more tax revenue for the locality, then private property, perhaps one of the two most important hallmarks of our system, is a memory, even a joke.

S. 1313 has no real teeth (you can learn more about it here). If the law is broken, it doesn’t provide both an enforcement remedy and a remedy available to the property owner under attack. Our amendment does! But my favorite part is the penalty.

If you believe in the 10th Amendment, then you believe nearly everything the federal government spends money on is unconstitutional. Indeed, illegal. It’s hard to conceive of a transfer of funds from the feds to any locality that is constitutional. Our remedy would use a private taking for private purposes as an excuse to shut off the tap. That’s what I call a win-win.

Heck, I’d like to see localities try these takings so that they’d lose all of their federal dollars!

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