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Sunday, August 14, 2005
PoliColumn: Alabama and Kelo
By Dr. Steven Taylor @ 7:18 am

From today’s Mobile Register:

State leads way on property rights
Sunday, August 14, 2005
By STEVEN L. TAYLOR
Special to the Register

When lists are made concerning various actions, achievements or failures of the 50 states, more often than not we find that our state of Alabama ranks low on the good lists and high on the bad lists.

As such, it is with great pleasure that I highlight something very positive that Alabama’s state government did first: work to protect property rights in the face of the Supreme Court decision of Kelo vs. City of New London that was issued in June.

The majority opinion in Kelo (the court was split 5-4) dealt with an expansion of the power of eminent domain. The power of eminent domain derives from the Fifth Amendment of the US Constitution, which states (among other things) that private property shall not “be taken for public use, without just compensation.”

This is known as the “Taking Clause” and allows governments to take private land for public use so long as the owner of that land is justly paid for the land.

For example, if it is ever actually decided that Interstate 85 will be extended westward from Montgomery to Meridian, Miss., and it becomes necessary to put part of it through Granddad’s farm out in western Alabama, Granddad will receive just compensation for the land and the government will get the land upon which to build the road.

Granted, Granddad may not much like the whole thing, but the point is that there are circumstances in which it may be necessary to obtain private lands for the overall public good. Further, the Constitution guarantees that one will be compensated (unlike the way kings often took land in the old days).

The basic principle is sound: It would be impossible to engage in substantial public works, like the interstate highway system, without some power of eminent domain. Or, at a minimum, sans such a power, the government (and, by extension, taxpayers) would have remarkably higher costs as it diverted the construction of roads and such to land that it could acquire.

This principle is well established, even if it is sometimes considered no better than a necessary evil. However, the Kelo decision took the notion a step (indeed, several steps) further by allowing governments to seize property not for obvious public use, like roads, but to be turned over to private developers who will improve the property in such as a way as to enhance the economic development of the region.

In this case, the city of New London, described in the Supreme Court ruling as a “distressed municipality,” sought to use its eminent domain powers to condemn and purchase a number of private homes (including one belonging to a woman who had lived her entire life in the home, having been born there in 1918) to turn over to the private, nonprofit New London Development Corp. for the purposes of economic revitalization.

A number of persons fought the city’s right to evoke eminent domain in this case, on the argument that the “taking” did not constitute a legitimate public use.

The Supreme Court disagreed, and in a 5-4 ruling decided that the ability of the city to potentially create jobs and tax revenue outweighed the right of private property owners.

This didn’t sit well with a good many people, including the legislatures of 28 states where legislation has been introduced to curb the Kelo decision. Alabama was the first to pass actual legislation.

On Aug. 3, Gov. Bob Riley signed a bill passed on the last day of the spe cial legislative session. It bans the use of eminent domain powers in the state if the purpose of the taking is for the construction of “industrial, commercial, office, retail or residential” property.

This bill at a minimum blunts the Kelo ruling, at least in terms of the actions of state and local governments in Alabama.

As such, the law helps to protect the property rights of Alabamians from overzealous mayors, city councils and county governments, and therefore helps protect a fundamental right of Americans: the acquisition and retention of private property.

The right of the state to utilize eminent domain powers for the construction of true public needs, such as roads, public building and utilities, and for the elimination of blighted areas, remains in force.

I should conclude by pointing out that in this very newspaper on July 31, I criticized the Legislature for wasting time in the special session by passing a resolution about Alabamians traveling to Aruba. I stand by my critique, but wish to give direct credit to the Legislature and governor for taking the opportunity presented to them in passing this eminent domain law during the special session.

Filed under: US Politics, My Columns, Alabama Politics, Courts/the Judiciary | |Send TrackBack

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