Consider the following. You are sitting on the screened in porch of your home, enjoying the gentle warmth and the scents of springtime. Your garden is in bloom, the gracious elms shade the back lawn, and your kids are planning a tree house as their summer project.
Suddenly, your reverie is broken by the sound of a pickup coming up the gravel driveway at high speed and going directly on to your property. Earth (and your rosebushes) go flying. A very large, bearded man in bib overalls jumps out of the truck, shouts a few incoherent things about you being on his land, goes to the rear, pulls back the tarp, where lie a variety of earth-moving tools, and a gun-rack. He appears to have a holstered pistol as well.
Quickly, you call the kids into the house, and lock the doors. The man ignores you, looks for a likely spot, and plunges a boring tool into the soil. Within a few minutes, your yard looks like it's been infested by gophers. You swiftly call the local police, two patrol cars are dispatched, and short time later, order is restored, the scary man led away, and the only evidence of your trauma are a lot of tire-tracks.
Life begins to return to normal. But, a month later, another pick-up truck arrives, this time with a logo on the side. Once again a very large man emerges, this time clean-shaven and wearing a pressed button down oxford and khakis. On the pocket of his shirt is the same logo, and this time, what he’s got on his belt is a laser-measuring tool. He very calm, very polite, and hands you a sheath of papers. You can either let him survey for the oil pipeline company he represents, or he will be back another day with a court-order, and a lower offer for the right of way they need.
Once again, you call the cops. This time, however, just the deputy shows up. Apologetically, since he used to deliver the Sunday paper to you, and you always gave him a cold drink and a piece of pie, he tells you that, like it or not, the large-but-polite man with the laser-measuring tools will soon be back with earth-moving equipment, and your backyard, and the kids’ tree-house, will have to make way for an underground pipeline. The young man with the earnest face will add, also apologetically, that when that time comes, you will get compensation, but the law is behind pipeline guy. And he may also murmur, out of earshot, that his parents are pretty upset as well.
That’s the “beauty” of Eminent Domain. Private land may be “taken” for a public purpose, with compensation, but without consent. Property may be seized for something important, something that obviously advances the public’s interest, like roads, or schools, or a hospital. Eminent domain was used to build the railroads, massive public utilities, giant public works, and things like the interstate highway system. Or, as in the highly controversial Supreme Court decision Kelo vs. The City of New London, it may be taken from private citizens, and handed to a developer who proposed an area of urban revitalization. Or, as with pipeline guy’s employers, private industry may appropriate to itself massive swathes of private landholding, without the consent of the owners, and dig, pipe, frack and extract to their heart’s consent.
If this (all of it) seems unfair and “big government” that’s because it is. It is inherently unfair to the people who didn’t want to sell (or give access) to their land. The Kelo case was a cause célèbre for conservatives and many moderates when it was decided (5-4, with the conservatives in the minority) and several states rushed out legislation to limit its use, but if you want to look deeper, abolishing eminent domain isn’t really a concept that lends itself to any mainstream ideological framework. If you read the Court’s decision you can see the inconsistencies. The majority opinion strains to justify what amounts to a taking that benefits private interests, and finds a public purpose in a (dubious) plan for urban renewal. The dissent (written by Justice O’Connor) clearly sees this particular taking largely for what it is. But the more conservative Justices can’t merely fall back on the “judicial activism” or “not what the Founders intended” arguments, because eminent domain predates the Constitution and is, in fact, acknowledged in the Bill of Rights. Justice Thomas’ “Originalist” dissent lacks any credibility and was a solo work—even Rehnquist and Scalia didn't join it.
Not only is it difficult to come up with an intellectually consistent view towards eminent domain, it is also very difficult to come up with a scope of use that is, in any way, politically consistent. Read Ann Neumann’s article in Sunday’s New York Times “A Pipeline Threatens Our Family’s Land” and you wonder how anyone could defend the despoiling of such natural beauty. But how do you slam the extraction industries for using eminent domain for private profit when New London took other people’s land to benefit a small number of private parties, with whatever “public good” there might have been speculative at best? How can either thing be right?
What we have is a real-world situation that is growing in importance, is unpopular, but has Constitutional backing, and lacks both certainty from an intellectual basis and consistency from a political one. That is what I would call an opportunity.
Wouldn’t it be marvelous to have an open discussion and find a truly fair and viable limit to “public use.” Because who really wants to have their property taken against their will, “just compensation” or not? Could you possibly find a less partisan issue? And, wouldn’t it be absolutely incredible if politicians were able to acknowledge that this is a problem that just doesn’t fit the playbook, and they determined to put aside their conflicts and put the needs of individual citizens first? If they could do this, maybe they could do other things as well.
So, whether the person outside your door is a man in bib overalls and a shotgun, or a lawyer in a suit with a briefcase, you could just offer him a cold drink and a piece of pie, and send him on his way.
You have to admit, it might be eminently naïve, but it’s an eminently wonderful idea.
July 14, 2014
Michael Liss (Moderate Moderator)
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