Voice of Unreason for NH Eminent Domain Amendment

Here's a letter to the editor from my local communist rag the Nashua Telegraph. The author, Cordell Johnston, has a very slim argument as to why we should all vote no. And has a bit of disinformation along with it. What can one expect from a letter to the editor.

This proposal was born from the hysteria following last year's U.S. Supreme Court decision in Kelo v. New London, Conn., a decision that has been thoroughly misrepresented in almost every accounting. The Kelo decision is simply irrelevant to New Hampshire, and the rush to amend our constitution is pointless.

If you picked up a newspaper in the summer of 2005, here is what you probably "learned": The Supreme Court allowed the city of New London to kick Susette Kelo out of the home she’d lived in all her life and sell her property to private developers who coveted her prime waterfront location. Suddenly, everyone’s home was at risk of being taken and sold to greedy developers.

Outrageous? Sure. There's just one problem with the story: Everything about it is false.

The real outrage is that a national libertarian organization, the Washington, D.C.-based Institute for Justice, has terrified homeowners (and lawmakers) by misrepresenting the Kelo case and its consequences. This is part of the Institute’s larger national campaign against every kind of governmental regulation, including most zoning and environmental laws.

Right, it's all hysteria and disinformation by some evil libertarian organization. Unfortunately everything about the case is far from false. I love the contention that people made out that Kelo had lived on the property her whole life. Not that that is a relevant issue, but we'll get to that below.

Now, a local political action committee is running commercials claiming the Kelo court ruled that "any home can be seized by eminent domain and bulldozed to build a shopping mall."

Hooey. Here are the facts: In 1998 the city of New London, a once-vibrant whaling center that had been abandoned by industry and left with crippling unemployment and a vanishing tax base, proposed a redevelopment plan to attract businesses, residents and tourists back to its riverfront area. The plan's purpose was to improve the city's physical environment and its economy for the benefit of all of its citizens. "Greedy developers" were not involved.

Hooey? Well, the developer may not have been greedy, but the property was definitely siezed from one private entity and handed to another private entity for private use. There most certainly was public interests in the case, but the Kelo and like properties weren't part of the public part. Only 3 of the 8 projects in that area had relations to the public use. The rest are private. That isn't all public use and most certainly was a questionable use for the public good. Go read the MuD&PHuD link. It details why the contentions on Kelo aren't overblown.

The plan required the acquisition of 115 pieces of property. Most owners sold their property voluntarily to the city. Six owners, including Ms. Kelo, refused and took their case to court. For the record, Susette Kelo had lived in her house for all of one year when the city began public discussion of its redevelopment plan - not that that matters, but let's get the facts straight.

Only one year?! How dare she challenge their right to steal her property if she only paid for it and had legal title for only a single year. How is this an argument? What relevance does time have with relation to ownership? As for getting the facts straight, your ruler appears to be bent Mr. Johnston.

Why, then, does New Hampshire's constitution need to be amended? It doesn't. No one has cited a single case in our 222-year constitutional history that would have been affected if the proposed amendment had been in place. (The one case frequently mentioned, an urban renewal project in Portsmouth in the 1960s, was carried out by the federal government pursuant to an act of Congress. No state constitutional provision could have prevented that.)

Further, the language of the proposed amendment was (fortunately) watered down during the legislative process to the point that it accomplishes nothing. It states merely that property may not be taken for "private development or other private use."

The constitution already says property can be taken only for "public use," which is the same as saying it can"t be taken for private use, so what is new here?

Right. No cases that he knows of doesn't mean that it couldn't happen. Citizens needn't wait until there is an actual taking to make a stand to provide greater protections. Shamefully, the amendment is watered down and in fact is more vague than it should be. In fact, he'll make that argument later in his letter, but for some reason it is fortunate in this part of his argument. The argument that the public use description in the NH constitution is enough strikes me as supporting a vague statement while vilifying a second vague statement. What's new here is that the constitution will now specifically forbid taking for private ownership irrespective of the public use. That little bit about private development is a far different thing than private use.

Supporters assert, strangely, that this change is necessary to prohibit New Hampshire courts from defining "public use" too broadly. But the amendment does nothing to limit that definition. It merely prohibits takings for "private use" and leaves the definition of both terms to - guess who! - the same courts that have defined them for two centuries. The amendment would not, for example, prevent a court from interpreting "public use" to allow a Kelo-type taking.

Since the amendment apparently changes nothing, what's the harm in supporting it? First, having two articles in the constitution that say the same thing in different words is an invitation to confusion and litigation.

Second, approving the amendment would send a message that New Hampshire voters can be fooled into approving meaningless constitutional changes to advance someone else's ideological agenda. Tell these people to go back to Washington and leave us alone. Vote no on Question 1.

No doubt the wording could have been more specific in the definition of public use. But that doesn't mean that the amendment isn't without merit. It would curtail the ability to hand property to private developers properties that could potentially fall out of public use in the future. Pease Air Force Base in Portsmouth is a good example of property taken for public use that ended up in private developers hands and wasn't handed back to the original owners from whom it was siezed.

Note now that he sees the wording as inviting confusion and litigation. I wonder why it was fortunate before?

This isn't the best of amendments, but it does further clarify, even if weakly, the stance that in NH it is unacceptable to take private property and hand it to another private entity for "public use."

I'd write a letter to the editor of the Telegraph on the topic, but they have a bad habit of not printing dessenting views. I've previously tried, but apparently they have an issue with giving all sides of the issue a voice.