The Morning Report
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Friday, Nov. 3, 2006 | Opponents of Proposition 90 have been getting away with murder. By claiming the government will have to pay tens of billions of dollars if Proposition 90 passes, they are admitting that for years through eminent domain and regulations the government has been taking billions of dollars from people like you and me when taking our property. Of course, if unfair government regulations are waived, Proposition 90 will cost government nothing. Opponents deny that taking half the use of your property is economically no different from physically confiscating your property; so, they simply don’t believe government should pay you. This is an abomination! There’s absolutely nothing in the Proposition 90 language that is not implicit in the Fifth Amendment to the United States Constitution that stipulates, “nor shall private property be taken for public use without just compensation.” Proposition 90 merely reinstates the original intent.
All governments bristle at being constrained. Our Bill of Rights, which is a misnomer, is not a bill of rights but a series of prohibitions against government. In our Constitution and Bill of Rights, there are 50 or so things that government cannot do, including abridge our freedom of speech and press, or take private property for private use. Interestingly, the news media believes government cannot be trusted to regulate speech or press but this very same government is all wise and knowing when regulating billions of dollars of private property, as if a leopard can change its spots depending on its victims.
Today, government can take anyone’s property for any reason and transfer it to someone else. One newspaper editorialized that, “On a 5-4 vote, the justices (U.S. Supreme Court) held that New London, Conn., was not violating constitutional property rights guarantees when the city sought to raze middle-class homes to clear the way for big commercial and residential development – solely to increase its tax revenues.” Fortunately, the court decision included, “Nothing precludes any State from placing further restrictions on its exercise of the takings power.”
Proposition 90 is in response to that. When enacted, it will prevent churches and tire stores from being condemned for Costco, plumbing stores from being condemned for Home Depot, restaurants from being condemned for Lowe’s, health care agencies and Toyota dealerships from being condemned for BMW, cigar stores from being condemned for hotels and a small developer’s property from being condemned for a larger developer. It will stop Ferrari dealerships, golf courses, deserts, land within national forests and entire cities of million dollar homes such as Coronado, from being declared blighted. Justice Oliver Wendell Holmes forewarned us in Mahon that, “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized a taking … the natural tendency of human nature is to extend the qualification more and more until at last private property disappears.”
The Kelo decision has resulted in a backlash whereby 30 states have enacted laws against using eminent domain for private gain. In California, Proposition 90 will additionally require just compensation when a governmental entity takes or diminishes the value of your property. Over 1 million Californians signed petitions to place the Protect Our Homes Initiative on the ballot. Polls show up to 93 percent of the public (89 percent of small businesses) oppose condemning private property for private economic gain.
A similar law, Measure 37, was overwhelmingly approved in Oregon in 2004 and has been upheld by the Oregon Supreme Court. Last month the Ohio Supreme Court ruled unanimously that a city could not take private property in Ohio for economic development “even though it would provide an economic benefit to the government and the community.” President Bush issued an Executive Order that federal funds could not be used in condemnation for economic development and the U.S. House of Representatives voted overwhelmingly for the Private Property Protection Act.
Governments are formed for the protection of private property, not its elimination (except under communism). The Founding Fathers understood that private property is the cornerstone of all our rights, including Freedoms of Speech, Press, Assembly and Religion, and that without property rights, no other rights are possible. “The right of property is the guardian of every other right,” said Arthur Lee of colonial Virginia, “To deprive a people of this is, in fact, to deprive them of their liberty.” Vote yes on Proposition 90.
Fred Schnaubelt was a member of the San Diego City Council and is president of the Citizens for Private Property Rights.