4/03/2005

Government approach to eminent domain needs to be reassessed: The Desert Sun (Palm Springs CA), 4/2/05

By James K. Lewis

"Life, liberty and the pursuit of happiness" as long as so-called "public use" doesn't demand it first. Private property is a foundation of our republic; just compensation was included in the Fifth Amendment of the Bill of Rights should one's property be required for public use.

But exactly what is meant by "public use"?

Originally, it referred to government use that would necessarily and directly benefit the public good, such as transportation right-of-way, aqueducts, government buildings and the like. Now it usually means the better good of some private developer - if the government can wring more taxes out of the deal via some convoluted classification of "redevelopment."

In contrast, Michael Allan Wolf, a professor of law and history at the University of Richmond, states that recent case law now dictates: "as long as there is an incidental public benefit, the use of eminent domain is proper."

But is that what the Founders meant when they penned the Fifth Amendment?

To find out, we must do proper exegesis: studying what the reader would have understood the writer to mean at the time a manuscript was written. It helps us discern now what the writer meant then when he wrote "public use."

The Federalist Papers stand as the first authoritative interpretation of the Constitution. In Federalist 42, James Madison gives us a glimpse into the mind-set that would limit such powers when he explains, "The power of establishing post-roads must, in every view, be a harmless power and may, perhaps, by judicious management, become productive of great public convenience."

"Harmless power" and "great public benefit" don't sound like he meant incidental benefit.

Also, though Alexander Hamilton ardently championed federal authority, in Federalist 1 he reassures that the adoption of the Constitution provided for "preservation of property."

To truly understand why they composed the Bill of Rights, we would also have to realize what it was like having an oppressive government confiscate one's home and property without any just recourse, or undergo forced occupation of our homes by threat of life.

They truly comprehended what abuses government is capable of, and that its powers require constraint. They had just fought a war to make sure it wouldn't happen again.

Should government agencies have unfettered power to force the sale of privately owned land to benefit a single company - even if it provides increased jobs and taxes?

Recalling recent valley cities' acquisition of property for the use of private developers - some through aggressive application of eminent domain - should we allow such land grabbing by government agencies under the guise of "redevelopment?"

At some point we, the people, will have to say "enough" and insist on what the founders meant when they wrote the Fifth Amendment and "public use." Private property is just that, private - as is public use, public. We don't need anyone interpreting otherwise.


The Desert Sun: www.thedesertsun.com