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May 26, 2006
The Eminent Front (it's a put-on)
The 104th Tennessee General Assembly, 2006 edition, has not proceeded without some reaction to the nationwide eminent domain controversy. Just what that reaction is, or how much it will accomplish in the end, is being negotiated in these final days of the session. Some feel that the only winner will be the legislative process itself, which will have vanquished all by reducing meaningful reform to mediocre bluster.
In a way, the very fact of a government’s existence is related to a massive property seizure. Think about it: a stretch of land, just plain old terra firma, from here to there and bounded by this and that, is suddenly branded as some group’s territory – a state, to coin a term. The “state” exists in principal part as the answerer to the question “but who says this is the land of so-and-so?” And it falls upon the state to defend against challenges to that answer. But before that state existed, the area indicated by its borders could be said to have belonged to others.
A certain rather united group of states was formed with the idea that individuals transact and own property for themselves; and that an accord among those individuals defines their government’s function in large part as being to protect these individually owned properties from undue incursions (of several types) by the state. But, a few may ask, how can people form a government that can be trusted to protect them from that same government? The rest of you know the litany of checks and balances, so do me a favor and fill in the other guys.
One of the most lasting checks against the abuse of power is carried out by the United States Supreme Court as it weighs legal decisions against the Constitution. The Court said in its remarkable 2005 ruling on Kelo v. New London that a local government can do the following: 1) officially designate as “blighted” privately owned property that has some attractive quality to other would-be owners (developers); 2) seize the property using eminent domain; 3) forcibly remove aforementioned property owners from their holdings with nothing more than a “fair market value” compensatory measure; 4) sell the property to the aforementioned would-be owners, who then develop the property.
Our Representatives and Senators are to be commended for heeding the legions of outraged citizens (or a few really loud ones) and starting the tricky business of clarifying terms like “public use” and “blight.” There’s just one little problem, however. Due to the very nature of how political organizations, local governments, and state governments interact and share many common members with the real estate and business development communities, it’s probably pretty difficult to reconcile the various interests into discrete ranks. State legislators know plenty of mayors. (To wit, the current 30th District House member is also the current mayor of East Ridge.) And, see, people that have looked into this sort of thing say that Tennessee’s cities like using (including threatening) eminent domain seizures for handing plum parcels to private parties.
The above claim’s source, CastleCoalition.org, does not name Chattanooga as one of the cities with E.D. problems (thank Bob), though Knoxville and Memphis are cited. We’re not talking about the water company takeover attempt, nor does this issue include things like the Igou Gap Road widening project. These, like them or not, are perfectly legitimate experiences with the eminent domain principle. And I admit that the theoretical picture gets awfully blurry when certain factors are present, such as neglected industrial sites with obscure, inert ownership. The problem on the ground, as they say, is when individual property owners are forced out of their homes to make way for new owners to—to, well, put it bluntly—get rich off the deal. The arm of the public will being a necessary thing and all, it shouldn’t also have a hand in there like that.
So what defense have our state lawmakers devised for us in the wake of the Supreme Court dam burst? To find out, I queried the thriving debate known as the Tennessee blogosphere. Why? They really pay attention to this stuff, and growing numbers of them are in the legislature itself. (Okay, it, like, went from two to three, or something. But that’s growth.) Oddly, unlike other touchy questions, on this one they’re all on the same side. Really, more than a few seem to be asking, “How can there be sides?” One could gather from only browsing the commentary that our representatives’ response is pompous and ineffectual. According to everybody, the bill, in its various sections, makes quite a show of stopping eminent domain abuse; but then it codifies as exceptions virtually all of the same reasons for taking that are used today. (The key point of argument is whether the larger loophole is in defining the word “blight,” or in defining the term “public use.”) So, let’s see: that’s not much of anything, then.
Okay, bummer, everyone go home and we’ll see you next January. Is that all we get? Go ahead, cite “consensus” as the noble enabler of a 31-0 State Senate vote on the matter. I’m more apt to call it “cowardice.” Not one Senator voted against a toothless, wink-and-nod bill out of protest, or what could have been perceived as respect for one’s constituents. Not one of the amendments that were brought to add tangible protections against colluding developer-government cartels made it through the maze of House subcommittees. I sure wish there were some way to help decide who sits in those Nashville offices and makes these laws.
[Cross-posted from the May 24, 2006 Pulse.]
Government , Pulsations | By joe lance | 10:50 AM