Blue Collar Muse

Last week I wrote about the plight of Nashville’s Joy Ford, the country’s latest victim of Eminent Domain abuse by government. Nashville’s Metropolitan Development and Housing Agency (MDHA) has begun legal proceedings under Eminent Domain to condemn and seize Joy’s business. It has prospered at the head of Music Row for almost 30 years. Now it is “blighted” and must be bulldozed to make room for $100 million dollars worth of development by a private firm in Houston, TX. I said last week, this case is every bit as bad as Kelo vs New London in 2005.

Possibly anticipating the nation’s outrage over Kelo, Justice John Paul Stevens, writing in his Kelo opinon, said, “… nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” In the aftermath of Kelo, according to Property Fairness, 27 states, including Tennessee, took Justice Stevens’ encouragement and attempted to do exactly that in 2006.

The problem, of course, is not in the attempt but in the accomplishment. The Tennessee Bar Association published an excellent analysis of Tennessee’s new law. The short version is that, in Tennessee, little was accomplished beyond political posturing. It is Tennessee’s 2006 failure to further restrict its takings power which leads directly to MDHA’s 2008 actions against Joy Ford. Speaking of the effectiveness of Tennessee’s legislation, Drew Johnson, President of The Tennessee Center for Policy Research noted,

“Tennessee’s new eminent domain law is a joke—and the joke is on property owners across the state,” … Tennesseans aren’t any more secure from having their property taken than before the law was passed.”

In particular, Johnson says that the law’s failure to more clearly define blight and its outright encouragement of eminent domain use to acquire land for industrial parks makes it particularly threatening to property owners.

Three months earlier, State Rep. Susan Lynn (TN-57), offered this evaluation of the law,

… after being worked through committee, this bill essentially guarantees very little protection for Tennesseans when it comes to eminent domain. To quote Sandra Day O’Connor in her dissent of the Kelo decision, the “specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The bill states that ‘public use’ shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities - except in the case where eminent domain is used for; roads, public utilities, private utilities, housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks. Looking at that list, I really can’t think of any exception for private economic development by eminent domain that the bill leaves out.

These 2006 comments by Lynn and Johnson are prescient. Joy Ford’s property is being seized because it is deemed “blighted”. Drew Johnson noted the law’s poor definition of blight. According to Ms. Ford, her property is ruled “blighted” because, among other things, it is surrounded by a chain link, barbed-wire topped security fence and is the only building left on the development property. Yet someone, perhaps the developer, has erected a shabbier looking fence around the development site. It goes unreported that both a hotel and Ford’s building abut the same parking lot. I assume the hotel property is not part of the development and so escapes urban “blight” despite also standing alone. Either that or Ford’s building is not the only one left on the property. Further, the reason Ford’s building is the only one left is the Shoney’s and other buildings standing on the site were demolished in anticipation of the development.

I’m trying to determine if these truly are factors in the classification of the Ford’s property as “blighted”. If so, how unfair. MDHA and LionStone Group want to buy her property but Ford won’t sell. They move ahead with development plans and clear the land. This has, for them, the pleasant side effect of creating the situation needed to force Ford from her property. Had LionStone and MDHA been required to wait until the property was free and clear before proceeding, a major element of the case against Ms. Ford, that of her “blighted” property, would not exist. How does creating “blight” for personal gain become working for the good of the public?

However, it is Rep. Lynn’s comments which make me wonder if government has not stacked the deck against the citizens they are to represent. A quick read of the bill would lead one to believe Tennessee was seeking to protect Tennesseans from the exact abuse Connecticut forced on her citizens. As Rep. Lynn observes, the bill starts well, noting “‘public use’ shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities …” Unfortunately, the Tennessee Legislature left a loophole in the law. While making an acceptable exemption for traditional uses of Eminent Domain such as “… roads, public utilities, private utilities …” the bill then opens the door to all manner of Eminent Domain abuse by also exempting cases “… where eminent domain is used for; … housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks.”

The very issue which enraged the public in the Kelo decision, taking private property for private economic development to increase the city’s tax revenue, is not forbidden to government. In fact, the mechanism for government to do precisely that is written into the law. Government is forbidden from directly taking your property to develop to improve tax revenues. But agencies created by government whose purpose is development can do so. How did such disregard for citizen’s rights become law and an example of preserving the rights of citizens?

I’d like an answer to that from the Legislature. I’m sure Ms. Ford would, too. But for her, time is running out. The Legislature ran out of town at the end of the session. Too bad MDHA is still here and they’ve given Ford until just the middle of September to vacate the premises. After that, the wrecking balls start swinging. That’s long before the politicians responsible for this mess swing back through town. Stay tuned for more on this here …

Blue Collar Muse

SEE ALSO:

LionStone Blight at Kay Brooks.

Government Takes Over in Nashville at Blue Collar Republican.

Eminent Domain Abuse in Nashville at The Roundtable.

Popularity: 57% [?]

I remember when Bob Dole, then a recently defeated Presidential candidate, gained more national notoriety than he did in his Presidential bid by participating in an ad campaign against ED, Erectile Dysfunction. The first blend of ED and politics, it would not be the last. A few years later, a New ED garnered national attention. Eminent Domain.

Old ED may be inoffensively described as the inability of an unhappy man to erect a structure for his own use on his own property. This unfortunate situation was a private matter and left to the man and his family to correct. Senator Dole was hawking new construction options for our property owner to consider. New ED is similar but there are serious differences. New ED features government unhappy with structures a man is erecting (or not) for his own use on his own property. This unfortunate situation is being made public as government attempts to seize said property in the name of the People.

For years, the little talked about problems associated with Old ED remained unaddressed and anonymous. No one knew which of their family or friends may have suffered from the condition’s real and unfortunate side effects. Consequences such as depression and lowered self esteem led to all manner of attempts to fix the problem. In some cases, the problems led to divorce. Thus, the very institution designed to address man’s need to erect his structure was destroyed by his inability to do so. Eventually, in a serendipitous accident, a solution to many of the problems presented by Old ED was discovered. This has resulted in the widespread prescription of a little blue pill for millions of property owners around the world and interesting new career options for retired politicians.

This is where New ED and Old ED part company. New ED is exactly that - new! The problems associated with New ED are also new and they are anything but anonymous and unaddressed. For the 225+ years that our nation has been in existence, the issue of ownership of private property and the rights of property owners to use their property as they see fit were clear and established. People owned their property and the government had no authority over it. In fact, government was often the tool used by property owners to defend their property rights. Government, however, is a dubious partner in any enterprise and the issue of private property is no exception. Eventually, as it always does, government sought to expand its scope and authority in the matter.

It starts innocently enough. Governmental expansion may appear reasonable and even beneficial. For instance, if government helps people defend their property rights, it’s reasonable government needs to know who owns the property and what the property’s boundaries are. Thus plot maps and mortgages are born. If government provides these services, it cannot do so for free. Fees for registering said documents are also a reasonable thing. As communities grow, government must know which properties it is responsible for and which are serviced by other governments. City limits, township boundaries and other demarcations spring up. These aren’t free services either so property taxes, local sales taxes, excise taxes and fees spring up to fund government. It is about here, however, where property ownership passes from citizen to government. It’s the tipping point where people alone stop owning property and government becomes a joint owner.

It’s tempting to think otherwise. However, if you think you alone own your property and you are free to do with it what you will, try any of the following and see what happens. Try selling your property without paying taxes on the sale. Try not paying the annual property tax levied by the government on your property based on its value. Try denying the government Assessor access to your property when he comes to see if it’s worth more to you and thus qualifies for a government revenue (read tax) increase, too. Try making improvements to your property without paying for building permits, codes inspections and the like. There’s more but you get the point. Still think you own your own property?

Government’s expansion of its role in the ownership of private property has grown to the point it is not even pretending Americans own their own property anymore. The Constitution’s framers, knowing there may arise situations in which government might need the use of property owned by individuals, provided for that in the original language of the Constitution. Now known as ‘the Takings Clause’, the 5th Amendment states in part, “Private property shall not be taken for a public use, without just compensation.” This has traditionally meant government can buy, at a fair market price, property owned by a person, for public use, and the person cannot refuse to sell. This has been used to acquire property for Interstate Highways, government buildings and the like. While it is easy to disagree with the government’s decision that this or that property should be the one selected for such a purpose, it is pretty easy to agree that the purpose for which the property is being purchased by government is, indeed, one that will benefit most or even all citizens. The matter of price is also open to discussion but there are market guidelines that make that task much easier.

That situation applies no longer. The recent Supreme Court Kelo v New London, CT decision destroyed any pretense that Executive or Judicial branches of government would abide by Constitutional constraints. New London, CT did not argue government had a better use for the property than the owners. The government did not argue there was a use for the property providing a specific benefit for its citizens. The government argued the property owners’ taxes were low based on their use of the property. It argued that deflating the property’s value by condemning it; seizing it from the Kelo family and giving it to private developers for $1 with a 99 year lease would increase tax revenues by putting the land to a different use. Since those taxes would be spent on the community, this seizure of property was justified under the Takings Clause.

Many governments have passed legislation specifically preventing this unconstitutional seizing of private property but it is unclear such laws will stand if challenged based on the Kelo precedent. Despite some governments behaving well, others have not. In truth, no American is safe from government ordering him to move because it wants his property for itself. The New ED creates the scenario wherein the institution designed to protect a man’s right to erect his structure is now a weapon used against him. The protector has become a plunderer.

Unlike Old ED, there will be no accidental scientific fix. New ED will be eradicated when Americans choose to reclaim their constitutional rights and responsibilities. We must trust ourselves and our neighbors more than those in government when making decisions about our property. We must reject the idea government is our source and reclaim the notion we are responsible for ourselves and have specific rights, including to own property. And we must be willing to defend our Right to private property ownership by exercising our other Rights as needed. The Right to Free Speech, to Assemble, of the Press and perhaps even to Keep and Bear Arms will be needed to stem the encroachment of government on our Rights.

One can only hope a new politician will rise up (pun intended), like Bob Dole did, with a solution that returns the power and authority to solve the problem to the individual. If not, the New ED will lead to the same result failure to fix Old ED would have led to; the disappearance of Citizens. In the case of Old ED, citizens would have disappeared as fewer new citizens were born. In the case of New ED it will be that our citizens disappear as they are transformed into slaves.

Blue

Popularity: 57% [?]

In discussions of Constitutional interpretation, an interesting concept has turned up in the last few years in the context of a why a position is or is not Constitutional. It’s stated in some form of the idea that “the Constitution is a living document”.

The idea has appeal for a variety of reasons. The language is positive - our founding document is portrayed as living and vibrant, not stodgy and decrepit. It’s flexible, adaptable and able to change with the times. In today’s tech jargon, it’s 2.0; constantly updating to meet the freshest ideas and developments. Most people know one of the basic characteristics of the definition of life is anything which is alive, grows! If something stops growing it is either dead or dying. The intentional use of such language paints a picture of the document at the heart of our Republic as vibrant and energetic!. By association, changes made to that document or in its name are colored with the same brush. The intent is to have such changes viewed as proper and necessary to keep America in step with the times.

However, I find such an understanding of the Constitution, and legal rulings or private opinions based on it, to be deeply flawed in their understanding of both the content and the role of the Constitution. At its root, such a view finds the Constitution, as originally conceived and constructed, insufficient to address the challenges it faces in a more modern world. I cannot disagree more.

The first challenge faced by the idea of the Constituition as a living document is the basic simplicity of the document itself. This is not some lengthy work filled with hidden meaning. It was intended for public consumption. In fact, the entire original document was printed on just 4 pages of the Pennsylvania Packet and Daily Advertiser newspaper two days after it was signed. To give all citizens access to the document that would govern them, the text was routinely printed in other newspapers around the country. The assumption would seem to have been that readers would easily understand it. We continue that assumption today. Politicians and soldiers swear to defend the Constitution from its enemies. If it is difficult to understand and constantly changing, how can a man know who those enemies are? How can any particular view be said to be Constitutional or not if the Constitution itself is continually subject to review?

The second problem arises from the nature of the Constitution itself. Buildings are complex physical things, skyscrapers even more so. Interestingly, the largest ones, despite being made of steel and concrete, are flexible. The Empire State Building, for example, sways and moves at the top and was designed to do so. Its foundation, however, does not move. In fact, it is the stability of the foundation which permits the top to flex in the changing environment in which it continually finds itself. Just so, the Constitution is a foundational document, not one affected by passing environmental changes. It provides long term legal and cultural stability shielding us from the vagaries of societal fads.

Proclaiming the Constitution a living document is a deception. Whether by design or chance, the practical result of such a proclamation is separating citizens from their Constitutionally afforded protections. This creates a situation rife with potential for men with an agenda other than Liberty to oppress their countrymen. The Constitution was conceived and created to prevent government from trampling on the rights of men. Those rights were not granted to men by the Constitution. Rather they are recognized by the Constitution as being granted to all men by God. As such they are inviolate insofar as US law is concerned. Redefining the Constitution as a living document, capable of change and reinterpretation as each new generation sees fit, strips the eternal power of Divine authority from the document and subtitutes ever changing human reason as the standard by which we judge.

It is not the Constitution which lives and breathes, it is the men which it rules who do so. With each party in its proper place, our values are firmly anchored and we greet a changing future confident that American ideals are well guarded. Swapping the roles, however, leaves us in the precarious place our country and culture currently find themselves. Standing on a shifting foundation, we flail about to keep our balance in a changing world. To cope, we make our Constitution say things it clearly does not as in the case of Roe v. Wade and make it silent on things to which it clearly speaks as in the case of Kelo v. New London.

The Constitution as a living document is a lie which threatens our Liberty as men and our existence as a nation. That threat must be opposed with the same passion and urgency our Founding Fathers opposed the enemies of Liberty which fought them so long ago. Either that, or we agree to submit to the whims of whichever King ends up on tomorrow’s throne. Asked by citizens what sort of government the delegates had created for America, Benjamin Franklin famously replied, “A republic, if you can keep it!” He knew then what I say now - there exist those who would steal our Liberty! I don’t intend to allow that to happen without a fight. So - to the advocates of a living Constitution; to those bending the Constitution to fit their own views; to those seeking to steal my Liberty, and; to those standing at a distance and suggesting I surrender my rights, I echo the response of Leonidas to Xerxes when it was suggested the Spartans at Thermopylae surrender their weapons. I say, “Molon labe!” - “Come and get them!”

Blue

Popularity: 50% [?]