With Conservatives Like That, Who Needs Radicals?

The problem with eminent domain is that liberals don’t believe in private property, and conservativrs don’t believe in making the government pay.

       The late Bert Burgoyne of Detroit, who uttered this bit of insightful wisdom was well qualified to do so. He was a libertarian-conservative and an outstanding eminent domain lawyer with ample experience to make that judgment. Our own view is that  when push comes to shove, conservatives will abandon principle and go for the money instead. It all came into focus for us in the Tahoe-Sierra Conservation Council  case. As the then conservative Attorney General Ashcroft was making a speech to the ABA convention proclaiming himself opposed to government conduct that under the guise of regulation stripped property owners of all economically viable use of their land, his Solicitor General, Theodore Olson was arguing the opposite in the Supreme Court, providing weighty amicus curiae support to the Tahoe Regional Planning Agency that had denied all use of land to hundreds of individuals who had bought building sites in the Lake Tahoe area, but were not permitted to build homes. And who was the lawyer who argued that case in the U.S. Supreme Court on behalf of the government? Would you believe John Roberts? Yes, that John Roberts who was then practicing law in Washington.

         Now, another such object lesson comes to us from Mississippi. Inspired by the wretched Kelo case, the Mississippi legislature responded by passing modifications to that state’s eminent domain law, forbidding the use of condemnation for private, “economic development” purposes. The vote was unaninmous. But guess what?

         Along comes Mississippi Governor, Hailey Barbour, a fully credentialled Republican and former Chairman of the Republican National Committee,  and vetoes that bill. Why? His governorship left no doubt of his thinking. He was of the view that expansive eminent domain power was necessary to attract new industry to Mississippi, offering Toyota and Nissan as recent examples of doing so. So here we have an ostensible conservative — one of those folks who are forever demanding “strict construction” of the Constitution, don’t you know — calling for a loosey-goosey construction of that document’s “public use” clause, so as to confer a private economic benefit on private entities in the hope that those entities’ economic success will produce a trickle-down effect on the local economy,  making it — voila! — “public use.” Some strict construction.

          That would be bad enough by any standard, but there is more. What Mississippi has done in the past (and what its legislature was trying to prevent in the future) is the use of the power of eminent domain to wrest land from unwilling owners, in order to convey it to — are you ready? —  Japanese car manufacturers so they can better compete against the sorely beset American car manufacturers and do what they can to drive the latter out of business. We wouldn’t call that patriotic, would you.

        Mind you, we are not unmindful of the assorted sins of American car manufacturers in failing to produce and market reliable and durable cars that are appealing to American buyers and  capable of competing head-to-head with the Japanese. To that extent the Detroit folks deserve their treatment by the market. But it’s a long stretch betwen that and an American government’s active subsidy of Japanese manufacturers who, even as we write, are bringing the American car industry to its knees, and are responsible for six-figure job losses among American workers.

         To say nothing of the fact that American eminent domain law is to a large extent an act of kleptocracy — it takes unoffending property of unoffending citizens under the promise of “just compensation,” when in fact it offers nothing of the sort. The “fair market value” standard used as a measure of compensation is so ingeniously defined by the courts that it fails to consider the full extent of what a willing seller in a voluntary transaction would insist on as the price, and it ignores incidental economic losses suffered by condemnees when they are forcibly diasplaced from their homes and businesses, with the latter usually receiving no compensation whatever for their businesses that are destroyed by the condemnation but cannot relocate.

          Perhas we shouldn’t be surprised. It is a message of biblical lineage that men will sell their birthright for a mess of pottage. But at least in the biblical story the birthright was voluntarily given up by the person receiving the pottage. How much worse when the birthright is forcibly taken by the government that then proceeds to give it to foreigners for their enrichment at the expense of the economic wellbeing of its own citizens.

         The Mississippi House promptly overrode Governor Barbour’s veto, and now it remains to be seen if the Mississippi Senate will do likewise. Stay tuned.

Follow up. We are informed that the Mississippi State Senate failed to override Governor Barbour’s veto. The Governor argued that inasmuch as under Mississippi law the courts decide what is “public use,” the legislation would be unconstitutional. This interpretation makes no sense. Mississippi courts may indeed have the last word on whether a legislative determination of “public use.” But that is a judicial reviewing power of legislative decisions. Thus, for example, the courts have the last word on what is a “reasonable” search and seizure, but that does not prevent the legislature from passing laws determining what goods may be illegal and thus subject to seizure.