REMARKS ON EMINENT DOMAIN

TO THE CHINESE-AMERICAN AND

PHILIPINO-AMERICAN SOCIETIES

 
When I first became a lawyer I joined the Navy JAG Corps.  While working for Uncle Sam trying court-martials and defending malpractice claims, I picked up a few things about how the government operates that is of relevance to our topic today.  One thing I discovered is that plans made by government committee seldom work out anywhere near the way they are intended to.  Also, when working within the government, it often matters more who you know and how you operate rather than how much work-product you produce or what talents you display. 

Ladies and Gentlemen: these are two of the many reasons the government is ill-suited to be a Grand Planner for the economy in general or for any sector of the economy.  Anyone in the modern world that believes that the product of government planning is superior to the results of individual property rights needs to compare the living standards in the free world economy to those who live in socialist or totalitarian states.  I believe most people in this room would agree that both the Nation of China and the Nation of The Philippines have benefited greatly in recent years from greater freedom in their economy.

So, from the viewpoint of traditional American principles of limited government and the protection of private property rights and from the viewpoint of sound economic policy, this eminent domain business makes no sense whatsoever.  Developing or redeveloping private property simply is not something the government should be involved with at all.  So, why has this tidal wave of government condemnation of perfectly good homes and businesses taken place?

I can think of only one answer to that: the principle that power corrupts leading to absolute power and therefore absolute corruption.  That is a principle that some people in this room may be all too familiar with from their family experiences in their home nation.

In Kelo v. New London five judges made a disastrous decision.  It is probably the worst single decision made by the United States Supreme Court since the Plessy v. Ferguson case in 1896 that institutionalized the southern Jim Crow Laws.  The Kelo decision opens the floodgates fully.  No home, no business is safe from the envy of the rich and the powerful. 

The public response has been uniform outrage.  It seems no person who is not a government official or developer has a single good thing to say about the Kelo decision.  The same is true of every media outlet I have seen.   Indeed, the commentary has been unsparing.  Even the Virginian-Pilot, local bastion of leftism, strongly criticized the Kelo decision in two editorials.   A local poll showed that 97% of those responding strongly disagreed with the Kelo decision.

And the politicians have taken notice.  Reversing the effects of the Kelo case has been a primary talking point for all Republicans on Capitol Hill.  All of the conservative talking-heads on TV are buzzing over this case.  Several new national laws have been proposed in Congress by the Republicans.  They sound pretty good actually.   The Democrats have been unable to come up with a coherent response.  What else is new?

But this will certainly be a strong test for our Republican rulers in Washington and Richmond.  Despite the present rhetoric, consider

that the Kelo decision primarily enriches builders and developers: a traditional, essential Republican interest group.  Folks, are we just going to just see pandering for votes followed by watered-down ineffective legislation: a frequent occurrence in Washington, D.C. and Richmond?  Or, are we really going to see an end to Kelo’s idea that the government owns our homes more than we do?   I hope for the latter, but must admit I expect the former from most elected officials, but we shall see.  The nationwide land grab through political power-broking may well end up accelerating even now, even in the face of all of the public outrage.

We say to our legislators: do the right thing.  I brought with me today copies of the many legislative proposals the TLP has for the Virginia General Assembly in the area of eminent domain: proposals that go well beyond the question of public use.  We would love to discuss the merit of these ideas with legislators and see the chance for greater freedom put to a vote in Richmond.  The only legislation offered on this subject by the General Assembly members last year was pretty weak stuff and even that for the most part was not passed. I am impressed with the pledges for legislation offered by Delegate MacDonnell today.  Virginians need constitutional protection from losing their homes to government planning.  If they are no longer protected by the Fifth Amendment to the US Constitution, then the Virginia Constitution needs to be amended to provide specifically for that protection.