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Week of: August 5, 2001

Governments Abuse Eminent Domain

by F.R. Duplantier

There's not much point in owning property if you can't do what you want with it.

"Building moratoria prevent citizens from constructing homes or businesses on their property," reports Steven Eagle, professor of law at George Mason University. "Park regulations impose draconian curbs on lands not even inside park boundaries. . . . Wetlands regulations prohibit the use of lands that are moist only a few weeks each year," he continues. "And, across the country today, 'no-growth' advocates are bringing about restrictions on land use that amount, in effect, to the socialization of property rights."

In a policy report published by the Cato Institute, Eagle recalls how early in this century "a broad-based reform movement known as progressivism argued that expert management of human endeavors could alleviate all manner of economic and social ills. As progressivism took hold, massive administrative regulation of commerce, labor, housing, land use, and much else followed in its wake." He laments that Americans "have gone from the rule of law, by which government is carefully curtailed to protect our liberties, to the nanny state, in which government subordinates property and other rights in pursuit of 'social justice' through majoritarian rule."

Eagle recounts how progressive efforts "to remake society by wresting control over land from the 'amoral hand of the market' and entrusting it to 'expert elites' have led to comprehensive zoning, restrictions on development, and the subordination of property rights to often vague environmental concerns. There is no way to square those results with the respect for property rights that the Framers enshrined in the Constitution," he asserts. "Government has misused the eminent domain power to take property from some for the benefit of others. On a far vaster scale, it has misused the police power that was intended to protect individual rights, using it instead to violate rights."

Eagle charges that "the need for legislative protection of property rights results largely from default by the judicial branch of government. The courts of justice were established," he notes, "to constitute 'the bulwark of a limited Constitution against legislative encroachment,' as Alexander Hamilton put it. Yet, instead of protecting the rights of the people by ensuring that legislatures and the agencies they authorize remain 'within the limits assigned to their authority,' the U.S. Supreme Court has for many decades acquiesced in governmental encroachments on private property rights. While the Court has made efforts over the past decade to correct the problem, and has done so marginally," Eagle affirms, "its property jurisprudence thus far has proven inadequate." He urges state legislators to "limit the state's police power to the prevention of harm and to limit the state's eminent domain power such that it would be used to acquire property only for legitimate public uses." Eagle insists that compensation should be paid "to all property owners who were deprived by state or local governments of their rights to exclude others from their property, to dispose of it, or to use it."


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