By Timothy Sandefur, Pacific Legal Foundation
TIM SANDEFUR: I'm an attorney at a conservative legal organization called the Pacific Legal Foundation. I filed a couple briefs in the big eminent domain case, and I was very impressed this morning how you got this case exactly right. This is not about states' rights. This is about massive corporate welfare programs to take property away from poor people and give them to Costco and IKEA and Home Depot and other big powerful corporations, and it was blessed by the liberals on the court. And this is what happens any time private property rights are denigrated. Back in the 1930s, the court said they didn't really care much about property rights because they wanted the government to take property away from rich people — and it was only a matter of time before rich people like these companies figured out how to use that power for their own benefit, and that’s okay for the liberals.
RUSH LIMBAUGH: I can't add to it other than thank you for your comments. The thing that surprises me about this, though, is how some people actually think this is a victory for states' rights and for local government rights, because they're not fully aware of just what happened here. But let me ask you, since you're out in the west: What's the complication here for other private property rights when it comes to environmentalism, such as — we all know the big cases, the kangaroo rat down in Bakersfield, and the guy losing his farm as wetlands. All these Supreme Court cases have echoes. What's the echo going to be for people out west on something like that?
TIM SANDEFUR: Well, down in San Jose here they're condemning property to leave it as open space. They take away property and leave it to the animals. Of course not only does that mean that you can't build on your property, but that means that the tax base for the remaining people in the city, their tax burden goes way up because now there's more untaxable property, and this is happening all over the country. In five years between 1998 and 2003 there were 10,000 reported cases across the nation of eminent domain being used to benefit private parties or threatened to be used for the benefit of purely private parties for their own private profit. The Constitution says you can only take property for public use and now the Supreme Court said that anything that benefits the public is a public use.
RUSH LIMBAUGH: Yeah, but the way the states are getting around it is very crafty. Well, they're not getting around it. What they're saying and the way they're spinning is that you can take anybody that is a major property developer. They're going to be paying more property tax than these little small fry homeowners such as in New London Connecticut, and that's used to justify it.
TIM SANDEFUR: Of course. Well, the problem with that is that anybody's house can be more productive if it were turned into a Costco, and the Constitution says "public use." It does not say "public benefit," because the everything can be somehow described as a public benefit. If you take somebody's home and turn it into a public park or if you take somebody's home and turn it into a Costco or if you take somebody's home and just give it to, say, a group of homeless people.
RUSH LIMBAUGH: Yeah.
TIM SANDEFUR: I suppose that benefits the public, but that's not private property rights because it's not public use, which is what the Constitution specifically says.
RUSH LIMBAUGH: Precisely. It's just the government choosing Citizen A over Citizen B.
TIM SANDEFUR: They're going to choose the most politically influential group instead of poor people or people like Susette Kelo, a nurse who is working three jobs to cover her housing payment there in New London, Connecticut. She's now being thrown out of her house to give to a convention center because that will improve the tax basis and allow the politicians to spend more tax money.
RUSH LIMBAUGH: But the thing people have to understand about this is, in my view anyway, is that we hear all this talk about Democrats and liberals being for the little guy, and this court, the liberals on this court found for government — and whenever it's government versus the guy, little guy or big guy, they're going to find for government either way around. They did in this case. It looks like they're finding for Citizen B but actually what's going on, they're finding for themselves because they're going to get more tax revenue out of this.
TIM SANDEFUR: They're finding against private property rights because if this court says the government had no right to take property from one person and give it to another, why, 90% of the government would be fired tomorrow because that's what government does all the time. In every facet of its operations, it takes property from some people and gives it to others and that's not what the Founding Fathers intended. They required that government abide by strict limitations, and those have eroded over the past 70 years and so it's no wonder that wealthy corporations figured out how to exploit government's power to take people's property for their own benefit. If I had the power to lobby govemment I might do the same thing, and take the White House and make that my private residence, and claim it's for the public benefit.
RUSH LIMBAUGH: Hang with me, Tim, because I have one more question for you, but first I must say, "I hope you liberals listening to this program," and I know you're there and you know who you are. I hope you're noting two conservatives railing against big corporate interests.
TIM SANDEFUR: That's exactly right.
RUSH LIMBAUGH: You just normally don't hear that. You really don't associate the two. Normally it's the left you hear wailing and moaning against big corporate interests.
TIM SANDEFUR: But Rush, the reason for that is that conservatives recognize that private property rights should be respected for everybody. The poor man should have his house respected and the rich man should have his house respected, and the only way you can have a safe and free society is if you have a government that respects everybody's property rights equally and leaves them alone.
RUSH LIMBAUGH: There's an added element to it and that is the importance — maybe even of more importance than the right to free speech — of the right to own property in a free country. Without the right to own property even with the right of free speech you don't have a free country not when the government can come in and take whatever they want whenever they want it, not pay you anything for it or very little for it and give it to somebody else or use it themselves.
TIM SANDEFUR: You can't even have freedom of speech if you don't have private property rights, because the government can retaliate against you for expressing your opinion by taking away your property. Private property dghts are the most important of all rights because they are the ones that protect every other right.
RUSH LIMBAUGH: Which is why it was specified in the Fifth Amendment of the Constitution. Now, my other question. There was a ruling last week, the first of these private property rights rulings, involving a hotel in San Francisco.
TIM SANDEFUR: That's right, San Remo Hotel. Our foundation was also involved in that case. That case says that now you have to go to state court first with any kind of taking claim — and of course you're going to lose because the state courts are made up of politicians who are appointed by a governor who is in favor of taking away your property to begin with. Then, once you lose in state court you've out of luck. You can't go to federal court because the federal court will say, "You already heard your case in state court." That's not what the system was meant to do. You're supposed to have a federal avenue whenever your property rights are deprived.
RUSH LIMBAUGH: True, but I need more information on the specifics of this case.
TIM SANDEFUR: Rush, it's a terrible case.
RUSH LIMBAUGH: Here's what I know. I know that you had a hotel, and most of its rooms were not rented to vacationers and tourists but for long term residents. And the hotel decided they wanted to change the way it was doing business. They wanted to convert most of these rooms to traditional hotel use.
TIM SANDEFUR: And the city sid no. I you want to do this, you have to pay this extortionate fine to the city that we'll use for public welfare programs or something like that.
RUSH LIMBAUGH: And they said you can't do it because we have to have so much guaranteed low income housing in the city, right?
TIM SANDEFUR: That's right, exactly. They shifted the cost of the homeless problem onto this private hotel owner rather than taxing everybody equally to pay for the program. This was a blatant violation of private property rights, and the California Supreme Court, except for the great Justice Brown who now is on the DC Circuit, upheld that and said that's perfectly all right.
RUSH LIMBAUGH: She called it thievery.
TIM SANDEFUR: Out-and-out plan of extortion, exactly.
RUSH LIMBAUGH: So essentially the San Remo Hotel in San Francisco was told, "No, you cannot use your property as you choose. You've gotta use it as the city mandates or you're going to pay through the nose."
TIM SANDEFUR: And as Justice Brown pointed out what that means is that private property is really just a scheme that the government used to raise money for its welfare programs. It used to be that private property was yours and the government existed to protect it. But now private property is just like a farmer who leaves a chicken in its coop and leaves it a few eggs so that it will lay a few more eggs for his own benefit. That's what private property is like in America today, because the government sees it as just a clever mechanism of creating wealth that it can then go and redistribute.
RUSH LIMBAUGH: Now, would you say that like a lot of people live in areas where there are tremendous town and city regulations, not just zoning, but where you can build your house, how high it can be, what color it can be, would you say that that is an example of encroaching loss of private property dghts?
TIM SANDEFUR: Oh, yes, many of these regulations deprive people of the value of their property. Sure, they don't take the full value; they don't take the actual title document but the government passes laws that deprive people of almost the entire value of their property. You know, Pacific Legal Foundation did a case called Palazzolo some years ago where Mr. Palazzolo bought some land in Rhode Island and he was gonna build some luxury condominiums on it and retire off that money and the state came along and passed a law saying, "You can build one house on that property, and that's it," and the Supreme Court said, "Well, that's not a taking of this person's property." They took 99% of the value of his property but because they didn't actually take the title deed document. That's just a sham. It's just a shell game designed to protect government welfare programs at the expense of private property dghts.
RUSH LIMBAUGH: What can little people do?
TIM SANDEFUR: What needs to be done is state constitutional reform. We need amendments in all of the state constitutions that prohibit the taking of private property for private use. Arizona and Washington already have these provisions. Other states need to get them. We need one here in California, very badly, that says: "Private property shall not be taken for private use."
RUSH LIMBAUGH: This is what frustrates people, though, Tim. The Constitution already says that. The US Constitution already says it but because we've got some people in robes that aren't going to read it that way we gotta do it all over again, and some people just throw up their hands and say, "Well, it's never going to happen to me. I don't care." Most people will say, "That's not going to happen to me. I'm not going to get involved. I've got other things to do."
Timothy Sandefur: tms@pacificlegal.org
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