Whatever Happened to Property Rights?

^{Category: Free Trade and Open Markets}

Yesterday I received a somewhat jarring email from a concerned citizen named Katherine McCreery:

I am curious about why the recent issue of the mis-use of eminent domain (for a shopping center instead of for public uses like schools or maybe a jail) isn't a big issue.

I'm curious about that, too. Because we seem to now take for granted the fact that property rights, as we knew them prior to 2005, no longer exist. Local government can claim your home under eminent domain, order it condemned, boot you out, bulldoze it, and replace it with a shopping center--and all it has to do is make a reasonably solid argument that the property replacing your home will generate more jobs or tax revenue for the surrounding community.

After I replied, Katherine told me a little bit about her own city--Rancho Cordova, California--which may well become a victim of eminent domain. She has graciously given me permission to reprint her story here:

I had heard of the Kelo v. New London issue, and was appropriately outraged, but I have just become aware that the use of eminent domain for this purpose is catching the attention of city managers everywhere. Including mine. The new city of Rancho Cordova CA (incorporated two years ago) thinks it would be a dandy idea to declare over half of the new city "blighted" and use the tax revenues from the city as a whole to "improve" these areas. They state that eminent domain may become involved. Although they have "no plans at this time" to use eminent domain on residential structures. I notice that is carefully worded. Also I wonder what constitutes a residential structure. Many homes in the areas to be included in the proposed redevelopment plan are rentals. I can see those being excluded from the definition of residential.

My writing to you was prompted by the fact that the city managers have clearly researched this in depth on their own and are prepared to start immediately. Among the citizens there is almost no awareness of the issues that need to be understood and managed in a decision of this magnitude. Education needs to happen as soon as possible, but it`s a below-the-radar issue. I do not have a decision myself on whether what the city council is proposing is good or bad, but I have a BIG issue with the fact that people are floundering for some way to understand the proposal, or not realizing the potential for harm that could arise if powers are used improperly.

...and understandably so. When John Locke wrote of basic rights in his Two Treatises of Government, he emphasized three: Life, liberty, and property. The Founding Fathers used Locke's concepts as the basis of rational government, but in the wake of Britain's prohibitive taxes on rum, tea, and paper, Thomas Jefferson used the more inclusive wording of "life, liberty, and the pursuit of happiness" in the U.S. Declaration of Independence. But that was largely a rhetorical flourish; property rights are central to the U.S. philosophy of law. That is why the Third Amendment prohibits the government from forcing citizens to quarter soldiers. That is why the Fourth Amendment--which guarantees citizens "[t]he right ... to be secure in their persons, houses, papers, and effects"--prohibits warrantless searches. According to Locke, and the Founding Fathers who used his work as the basis for U.S. law, the legitimate function of government is to protect life, liberty, and property.

And in this case, two out of three ain't good.

One more sad postscript to all of this: Complaints about the Bush administration's judicial appointments frequently rely on the phrase "corporate court." I have probably used the phrase myself. But the five justices who supported the Kelo ruling were John Paul Stevens (who wrote for the majority), Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, and David Souter. The four justices who dissented? Sandra Day O'Connor (who wrote the primary dissent), joined by William Rehnquist, Antonin Scalia, and Clarence Thomas. One can't help but wonder if we might have been looking for our dreaded "corporate court" in the wrong place.

See also:

• How Eminent Domain Impacts Home Owners
• Hotel Proposed on Justice Souter's Property?
• House Votes to Deny Federal Funds to Localities That Seize Private Property Under the Kelo Precedent