- a weekly column published in the Pioneer Press

Recently, the Supreme Court in Kelo v. New London decided that local government could condemn and take private property, (with just compensation,) for the purpose of a redevelopment project to revitalize the local economy.  http://straylight.law.cornell.edu/supct/html/04-108.ZS.html

The Bill of Rights, or the first ten amendments to the Constitution of the United States,  protects individual rights by listing actions that the federal government may not take. One clause under the Fifth Amendment states: …”nor shall private property be taken for public use without just compensation.”  The question presented to the Court was whether the purpose of the taking qualified as “public use.”

In their decision, the Court confirmed that the city could not take the land simply to transfer it to another private party. (I wholeheartedly agree.) However, the Court took note that in this case, there was a formal redevelopment plan with a purpose benefiting not just one identified class of people. Redevelopment was hoped to bring new jobs, increased tax revenues and integrated land use. The individual developer was seen by the Court as merely an agent of that plan and not a “private party.”  That is where many people disagree and are angry with the decision.

I take note that the plan, itself, was considered the “public purpose” justifying the taking of private property. That is scary. Think of all the coho recovery, land use, water quality and other plans floating around. Take some comfort in the fact that at least Siskiyou County government has a longstanding policy of not using condemnation to acquire land.

The Court indicated that past decisions had already clarified that the “public purpose” clause was not to be taken literally – there was no requirement that the condemned and taken property actually had to be open to use by the general public. Those decisions had also given the legislature discretion in deciding what public needs justified using the “takings” power. That discretion would apply to the city’s determination that the area was sufficiently economically distressed to justify a revitalization plan. In Kelo, the Court confirmed that “economic development” was a legitimate public need.

As a student of history, the steady march away from the protection of individual rights from the will of the majority is of great concern to me. The origin of our Country was based on the idea of the “social compact” – that each individual compacted with the others of his community to equally relinquish only enough power to the institution of government essential to secure every one equally in his person (health and safety,) as well as their property.

A primary purpose of government was to secure individuals in the equal use and enjoyment of their private property. In the beginning, the regulatory or “police powers”  of government regarding property use were limited. These powers had to be legitimately related to danger of substantial injury to the general public’s, (not some single class of interests’,) health, safety and morals.

Court rulings on zoning ushered in the term “promoting the general welfare” in reference to the police powers. This became expanded to include promoting the economic welfare, public convenience, public interest and general prosperity of the community. Over time, the social compact and the retained rights of the individual property owner from government regulation and the will of the majority has been eroded away. This is how we come to a point in time of multiple grand planning efforts.

My argument has always been that, if the promotion of the general public interest is legitimate, then it should be accomplished through eminent domain and not regulation. At least eminent domain is supposed to keep the individual whole with just compensation.  The regulatory approach places an unequal burden on the property owner and destroys the social compact.

I see the issues here as greater than the questions raised in the Kelo case. One issue is how do we carry out our government in such a way that we protect individual liberty, so that each person enjoys the greatest amount of freedom, while also protecting the common good? How far should the government be allowed to go to promote some vision of the common good at the expense of the individual and his liberty?