(NOTE: This is the text for Michael Quinn Sullivan’s audio commentary for Texas Matters, a program heard on Texas Public Radio. The audio is also available.)
Very few things are more sacred to Texans than our land. That’s why last year’s U.S. Supreme Court ruling of Kelo v New London came as such a shock. The Court declared that local government can take our property – our home, our business, our farm – and give it to someone else. The only protection? If state governments have a law prohibiting such action. Texas, sadly, does not.
While the power of eminent domain, the ability of government to take land for a strict public use like building a road or jail, is well respected, it has been a bitter pill to swallow that that same power can be used to circumvent the voluntary nature of the free market. That is, using the power of eminent domain to force one person to hand their property to another.
Of course, it is unfair to say that all Texans are equally affected by this broad, new power the Supreme Court has created for local government. As the Texas Public Policy Foundation’s analyst Bill Peacock has found, the real danger is to the middle and lower class, to those who are not politically connected or able to literally fight City Hall.
It’s easy to think this is a problem that doesn’t affect Texas. Local governments taking private property from one person and giving to another cannot happen here, right? Wrong. Bill Peacock has identified numerous, current examples of local governments working to undermine property rights. His work on this issue can be found at www.TexasPolicy.com.
There are some 80 classes of governmental entities that can exercise eminent domain, including for “economic development.” That translates to thousands of individual local governmental bodies that can, by law, take private property. It’s not just cities and counties, obviously, but also school districts, utility districts and even universities.
Outside Houston, a man is fighting to keep his tract of land. It seems a neighbor wants the local utility district to take the property away, and then sell it to him, so he can build a bigger housing development next door. Never mind the current owner simply doesn’t want to sell. The utility district sees the tax dollars such a development could generate and is anxious to bring in the cash.
And then there is El Paso. The city there wants to redevelop its downtown, and is in the early stages of developing a plan which would allow them to take property – much of which represents housing for low income El Pasons – from the current owners and give it to developers who will in turn make it into upscale, urban living and work places. Sure, such an arrangement might bring in more tax revenue – but at the cost of the rights of the people who currently own those properties. Isn’t individual liberty more important than a city’s tax revenues?
While some might find redevelopment of land offensive at any level, it is certainly much better when there is both a willing buyer and a willing seller. But under the current state of the law, all there really needs to be is a politically connected buyer. In the free market, buyers and sellers must agree to a price that both consider fair.
In the world after Kelo, the buyer can just get a local government to take the land for “economic development” and the seller is left out in the cold, hoping for a mere pittance.
The Texas Legislature happened to be in special session when the supreme court ruling came down last year, and they quickly passed a stop-gap measure to limit these kinds of abuses. But it was just that: stop-gap. Since the U.S. Supreme Court now says the Constitution doesn’t protect our property rights, Texans must now rely on legislators to take up the issue when they return to regular session in January.
Key reforms must include an out-right prohibition on government taking property from one person and giving it to another. Using eminent domain to build schools, jails, courthouses and roads are one thing, but a new shopping center is something else entirely. Additionally, lawmakers should prevent local governments from taking property for one reason, and then decide later they want to sell it out-right. If the land won’t be used for the purposes taken, then the original owner should receive additional compensation or have their land returned to them.
The legislature must reaffirm the basic principle that Texans are, indeed, secure in their property, and safe from the abuses that can come from excessive eminent domain power.