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Rethinking Eminent Domain

TO: Ohio Committee on Corporations, Law and Democracy / others interested
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Thanks, Greg Coleridge   More information:

Tomorrow, January 11, the Ohio Supreme Court takes up the issue of eminent domain. The case is being seen across the nation as a bell-weather on how states interpret the recent US Supreme Court "Kelo" decision. Below is one of two articles in the forthcoming issue of By What Authority (published by POCLAD, addressing the sacrosanct issue of "property."


Ranting and Raking on Eminent Domain
Greg Coleridge

Last week my neighbor, Jay, saw me shaking my head while reading on my porch. He's used to hearing my rants about one injustice or another and keeps up with the news. Jay's a self-styled history buff, and believes the U.S. Constitution is among the major reasons why this country has the best democracy anywhere.

"What are you upset with now?" Jay asked as he raked leaves into neat piles.

"Just reading about eminent domain abuse," I said. 

"Eminent domain abuse? Sounds familiar but just can't place it. Is that where the U.S. government believes it has the preeminent right to torture Iraqi prisoners?"

"Not quite. Eminent domain is the constitutional power of government to take a person's property without consent if it's put to public use and the owner is paid a fair amount for it. The Fifth Amendment to the Bill of Rights says no person shall 'be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.' Provisions in state constitutions affirm the same principle. For example, Ohio's Constitution states, 'Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.'"

"Oh yeah, now I remember," Jay said, leaning on his rake. "The government - federal, state or local - has the power to take someone's property so long as it's used for a clear public purpose and you're given a fair amount of money for it. It's happened throughout U.S. history thousands of times."

"At least," I respond, and put down my article.

"Hasn't it been used mainly to acquire land for roads, schools, parks, hospitals, fire stations, and other public buildings? These benefit the people. So where's the abuse?" asks Jay, happy to delay the leaf raking.

"The democratic intent of eminent domain was to expand public space, what some call 'the commons,' to permit people to define the use of land in their communities and make sure public needs are met. However, over the last half-century, governments, mainly local, have been using this constitutional tool to take property from one private entity and, rather than expand public space or public use, give it to another private entity in the name of creating jobs, increasing local property taxes and, in general, promoting local economic development."

"What's wrong with that?"

"Plenty," I said. "Governments become tools of big developers - big corporations against small corporations or individual homeowners. It used to be that corporations were arms of kings. After the American Revolution, corporations became arms of We the People. Now it's governments that are arms of big corporations raking in (no pun intended, Jay) more and more rights and powers. Over the last century corporations have perverted many provisions of the Bill of Rights that were intended to protect the people from organized public power. Corporations have turned all this on its head through court challenges and grabbing rights to protect themselves against the public. Using eminent domain to concentrate power and usurp the rights of people and communities is just one example."

"Is that your POKE LID soapbox I see you standing on?"

"That's POCLAD and no, I'm not standing on a soapbox, just this old crate."

"Whatever you say, Greg. When did all this start happening?"

"It's been going on for a long time but the problem worsened after the U.S. Supreme Court in Berman v. Parker in 1954 expanded the meaning of 'public use' to include projects having a 'public purpose' or benefit. This permitted corporations to rationalize that their private developments would benefit the public because of the jobs and taxes they'd create. Many public officials were more than willing to go along with this scheme because they were bought off by politicians or desperate for funds, having lost revenues from shrinking corporate taxes or corporate capital flight in past years."

"But wasn't one of the biggest give-aways of public land to the railroad corporations a century earlier? And didn't these huge handouts help make the railroad tycoons the most powerful people of their time?"

"Indeed, now that you mention it," I said, caught somewhat off guard.

Jay continued, "If this has been happening for a long time, why all the hubbub now?"

"The railroad land give-aways were gifts of public land to private companies," I said, in recovery mode. "This is different. This is taking property from one private entity and giving it to another, most often from a poorer, less powerful party to a richer, more powerful one. Why the current interest? Maybe because the U.S. Supreme Court last June ruled in Kelo vs City of  New London that a small town in Connecticut had the power to seize the private land of several homeowners and small businesses by condemning it as 'blighted,' freeing it up for a mega shopping mall and other forms of redevelopment that would bring the community more tax dollars. This is but one of an estimated more than 10,000 examples over the last four years alone of government using its eminent domain power to transfer private land to for-profit entities, mostly corporations. Here in Ohio, residents in the communities of Norwood and Lakewood have waged high-profile battles against large corporate property owners on one side and small businesses and poor or middle class property owners on the other."

"Can't states or communities do anything about this?" asked Jay.

"They have. The Supreme Court in Kelo removed federal constitutional protections from homeowners and threw the issue back to the states to decide if state-level protection remains. Many states have taken up the challenge. Legislatures in at least 25 of them have either passed, like our own Ohio, or introduced or promised to introduce legislation postponing or halting state and local governments from taking property for private development."

"That should make you and your POCLAD friends happy, right? People making local governing decisions, exerting their authority over big corporations and questioning corporate rights!"

"How do you know so much about these themes and principles?"

"Your By What Authority gets delivered to my house sometimes by accident," Jay said sheepishly.

"Huh, I thought it didn't come because I hadn't recently donated. Anyway, I have mixed feelings about all of this."

"How so?"

"I and others with POCLAD feel that some of those organizing in response to Kelo are glossing over hidden assumptions, sort of like you raking leaves over that big bare spot in your yard to make it look better."

"I can't get grass to grow in that spot, but never mind that, tell me more."

"The major assumption concerns the constitutional sanctity of property. Your namesake, John Jay, president of the Constitutional Convention and first Chief Justice of the Supreme Court, said, 'The people who own the country ought to govern it.' James Madison, meanwhile, felt, 'Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of opulent against the majority.' So they and their propertied friends set up a constitutional system that for the most part protected the rights of property as through the Commerce and Contracts clauses in Article I and the return servants clause in Article IV, affirming slaves as property. The Supreme Court, appointed and confirmed-for-life by the president and Senate, became the ultimate defender of private property, especially corporate property rights over any form of collective or community rights. Over the last two centuries, the court has consistently declared unconstitutional local and state laws passed on behalf of public rights, applying the constitutional bias for property protection to affirm that individual property rights supersede collective rights and to expand constitutional protections, such as the 14th Amendment and Bill of Rights, to one special category of property - namely corporations."

"All legislative and executive roads at every level of government now go through the Supreme Court?" Jay asked.


"Are you suggesting that Kelo is a continuation of this 'property rights over people' trend? That the public use provision of eminent domain has been turned on its head?"

"I like the word 'perverted.' Eminent domain has been perverted."

"If you can't kill it, then use it for your own gain," sparked Jay. "It sounds like that's what the corporate elites and wealthy few have done over and over."

"Exactly. On the one hand, they've embedded in our culture the 'sanctity of property' argument. On the other hand, they claim that their property rights count a lot more than those of the poor and working class, or even small businesses."

"Is it all as hopeless as it sounds? My namesake and his buddies seem to have created a pretty clever system that gives the appearance of openness and opportunity for change but, for the most part, locks in protections against any real threat to large-scale property."

"Change has happened. It comes down to decolonizing our minds, overcoming fear, and organizing. Social movements have eliminated some undemocratic and inhumane elements of the Constitution. Slaves are no longer property. Women can now vote. So can renters. Native Americans are even considered people under the law rather than savages. The place to begin is where we are today, on real issues that inspire people. Eminent domain is one of those issues."

"But what do we do?" Jay asked, restlessly.

"On this issue, concerned citizens need to organize and affirm their right to make decisions at a community level. Cities and communities can and should pass ordinances or change municipal charters, making it clear that their eminent domain policies will be used to promote public use, not private gain couched in some 'public benefit' language."

"Won't such ordinances or charter changes be challenged as 'unconstitutional' if they depart from Kelo?" Jay inquired.

"Bring 'em on! At what point are we the people going to affirm our rights over those of property?  We've raked over these issues long enough."

"If I hear you right," Jay said with a kind of bright understanding, "you're saying that eminent domain can be a democratic tool if it's applied in that spirit. It shouldn't be used to expand the property, power and rights of corporations in the hopes that some jobs or taxes might come our way. That's giving up too much public authority. Rather, eminent domain should hold to its original intent, to meet public needs and goals. Seems to me that ordinary folks need to organize to protect our right to make these kind of decisions."

"Hey Jay, I'm impressed. You've been reading those issues of By What Authority pretty closely!"

"Well," Jay shrugs, "it beats raking leaves."
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