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Blight
and the Powers of the State
(A contrasting of
the Police Powers with the Eminent Domain Powers.)
01/16/2006
One
of the most distinctive features of the American system of
governance is our commitment to two basic concepts: First, as the
Declaration of Independence says, man's rights are “endowed
by their Creator”, not the state, and second, that all
governmental power is derived from the people
themselves.
More than just feel-good sayings, these
principles are codified in state constitutions, like Missouri's
own. As a matter of fact, in the very first section after the
Preamble's statement of “profound reverence for the Supreme
Ruler of the Universe”, the Bill of Rights lays the
foundation for the rest of the document:
That all political
power is vested in and derived from the people; that all
government of right originates from the people, is founded upon
their will only, and is instituted solely for the good of the
whole. (Art. I § 1)
The
very next section of the Missouri Bill of Rights makes it clear
that the “principle purpose” of government is
to make sure these seminal principles are always honored.
The
Evil of Concentrated Power
When Missouri drafted
its constitution, it was just following the example of the
original 13 states. As each of them formed their government, and
as they established a federal union, they built hedges around
these principles through the very structure of their governments.
They recognized that the greatest threat to freedom was the
concentration of power in too few hands; they spent
countless hours researching and debating and the result was a
social compact, or system of governance, which resulted in the
greatest country the world has ever known.
Enumerated
authority and Separation of power
The founding
fathers were not satisfied with one or two checks on the
concentration of power; they implemented a labyrinth of guards.
Perhaps the foremost was making a civilian the Commander in
Chief of the military. A clear distinction between military
and civil powers is to always be maintained. Another guard is in
the form of limited and enumerated federal powers, with
all other power “reserved to the states respectively, or to
the people”. These wise men knew that allowing too much
power in the “general government” would be the death
knell to their dream.
Checks and
Balances
Separation of power between the states and
general government was not the only impediment to the
concentration of power. Our three branch system and
bicameral legislature further distributes power and
authority by creating a system of “checks and balances”.
An administrator who can do nothing the legislature has not
provided for by statute is much less likely to abuse the power
“derived from the people”. A legislature that is
subject to the veto of the administrator and judicial review by
the court is, likewise, less likely to trample upon the people's
rights. And, finally, a court subject to impeachment and trial by
the people's direct representatives is more apt to exercise
restraint.
The Four Powers of
Government
The founding fathers did not think those
deterrents to the concentration and abuse of power were enough,
however. Our laws operate under four distinct powers of
civil government which are to be used for four distinct
purposes and have four distinct rules for their use –
rules that are intended to “give security” to
the people's “natural right to life, liberty, the
pursuit of happiness”. As we will see, mixing up the
powers, purposes and the rules is a terrible mistake, much like
it would be a mistake to use the military, which is trained to
kill people and break things, as a civil police force,
which is designed to protect people.
The four civil
powers are, 1) Taxation, 2) Police Powers, 3) Eminent Domain,
and 4) Escheat.
All four of these powers are factors in
the present debate over the proper use of eminent domain. We
would do well to briefly examine each before we take a look at
their proper role in this confusing issue.
We are all too
familiar with the power of taxation - perhaps not a single
American escapes its effects one way or another. Certain rules
and principles, like “no taxation without representation”,
are used to safeguard the people's interests where taxes are
concerned. In Missouri, we require a vote of the people before
instituting a new tax or raising an old one.
The police
powers are often misunderstood. Misuse of them at times has
created a wariness, but the police powers of the state are really
designed to be the citizen's best friend. These powers, properly
used, are what give security to those inalienable rights bestowed
by our Creator. The police powers are designed to protect you
from those who would perpetrate mischief against you, or from the
neighbor who is so negligent with his rights that they infringe
on yours. Many checks against the police powers, such as due
process, habeas corpus, and trial by jury, are designed to
keep the police power from usurping the people's power.
It
is for good reason that eminent domain was historically
referred to as “the despotic power”. At first blush
it seems to go against every principle our country was founded
upon, but the founders understood it to be one of the costs of
establishing an ordered society and provided for it in the
federal and state constitutions. The very concept of eminent
domain was once a check in itself. When “public use”
really meant “public use”, there was much less
opportunity for mischief. The greatest challenge then was
determining “just compensation”, for it is natural
for a man to esteem his own property more than someone else will.
Statutory guidelines, including the right to a jury determination
of value are a check to ensure “just compensation” -
if those procedures allow for free market
considerations, that is.
Escheat is a less
recognized term, but the principle is simple. It is merely the
power the state has to claim unowned property, whether that
property was abandoned or the owner dies with no heirs or
assigns. The only “check” needed here is a
determination that the property is truly unowned, since no one's
rights will be infringed if there is no owner.
The
Present Problem
With an understanding of the
seminal principles outlined above, it is much easier to
understand what's wrong with our present use of eminent domain,
and, more importantly, what we can do to fix it.
The
problem we are facing today is that of applying the wrong
governmental power to the wrong societal problem. If we need
to build a road, we should use eminent domain, for that is truly
a “public use”. If, however, property is abandoned,
we should not be using eminent domain – the power of
escheat is the appropriate power to use. Statutes guarding the
people's rights can be custom tailored for each type of
power.
Arguably, the greatest abuse of eminent domain
today is the conveying of that awesome power, formerly reserved
to the people, into the hands of private entities – either
directly or through the conveyance of title or lease after a
government entity takes the property. This improper evolution of
“the despotic power” is considered by many a
necessary evil because our aging nation with its aging cities
have to do something about “blight”. We
must ask, though, “Is there another way?”.
No
doubt, “blight” is a problem in some areas, and there
needs to be a way to deal with it. The first thing we must do is
ask, “What is the role of the state in dealing with
blight?”. Its role is clear – it is to protect the
rights of the neighbors of the blighted property!
But
what is government actually doing? Too often, government, or some
private entity it has bestowed with eminent domain powers,
further injures the rights of the neighbors by designating whole
areas “blighted”, and then taking the good properties
along with the bad from unwilling owners! Other times nothing at
all is done about blight because no developer has come along to
take on the project. Either way, the neighbors are left
victims of blight.
Eminent Domain Should Not
Be Used to Deal With Blight
Instead of abusing
their eminent domain powers, local governments should pursue
their “principle purpose” of securing the
rights of those neighbors by using the power that is designed to
protect them – that power is the police power.
That's the power that has been used to deal with this sort of
problem for centuries in English common law and in our own
country through the enforcement of nuisance laws. Can't
these powers be abused, too? Of course they can, like any other
power the government has, but it is a good start to at least use
the right power to solve the right problem. Safeguards against
abuse of nuisance laws can be tailored to those laws.
Blight
and TIFs
It may be appropriate to give tax credits
or abatements to property owners in “blighted” areas
and there might even be a place for TIFs, if all participation is
on a voluntary basis. In these cases, a more liberal definition
of “blight” might be in order. By divorcing eminent
domain and “blight”, the difficulty of establishing a
definition that works for both TIFs and eminent domain
vanishes.
Summary
The
survival of our constitutional republic depends upon the
separation of powers as well as checks and balances our
forefathers so wisely based our system on. Any use of
governmental power that in any way diminishes those principles
should be brought back in check.
Missouri's property
rights protection needs to be restored to the original intent by
amending Article VI, Section 21 of the state constitution so that
it provides free market based solutions to the problems of blight
and substandard properties. The emphasis should be changed to
safeguarding the rights of the neighbors of such properties
through proper application of nuisance laws. Furthermore, the
constitution should stipulate that eminent domain power should
reside only in the hands of the government and that property
taken by the government should not be conveyed into private
hands.
Much consternation and hand wringing over this
issue can be avoided if we will only apply these simple
constitutional principles. We would do well to remember the words
of James Madison, the father of the U.S. Constitution:
Government is
instituted to protect property of every sort; as well that which
lies in the various rights of individuals, as that which the term
particularly expresses. This being the end of government, that
alone is a just government, which impartially secures
to every man, whatever is his own....
By: Ron Calzone
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