- March 27, 2024
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By Eric Daniels
They call it the Kelo backlash.
In the wake of the United States Supreme Court's Kelo v. New London decision in 2005, citizens around the country and from across the political spectrum rejected the idea, affirmed by a five-to-four decision, that states and municipalities could use eminent domain to transfer property from one private owner to another under the guise of it being a “public purpose.” The resulting public outcry led more than 40 states to propose — and many to pass — some measure of eminent domain reform.
Florida's reform legislation, signed by Gov. Jeb Bush in 2006, is recognized as one of the strongest protections against so-called “economic development takings.”
Coupled with the Harris Private Property Protection Act, it would seem that Floridians have insulated themselves from the abuses of property rights that plague the rest of the nation. Despite these victories, however, defenders of property rights still have work to do.
Many readers may mistakenly believe that their daily business practices are not tied directly to the latest developments in constitutional law — but they are. If you're unlucky enough to own a piece of property in a newly designated floodplain or drainage area in Southwest Florida, it can deeply affect the value of your property.
When local, state, or federal governments pass legislation that affects the use of your land, it inevitably affects its value. Imagine buying a piece of commercial property on which to build a new warehouse and then, after the fact, dealing with newly enforced or even newly invented restrictions on your use of it. The issue of eminent domain and regulatory policy still plays an important role for businesses in Southwest Florida.
Floridians continue to face attacks on their property rights. Just this summer, the Supreme Court granted a hearing for Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Florida-based case arising from the question of whether a judicial ruling can constitute a taking in violation of the Fifth Amendment. Although it is traditionally legislatures that abuse their powers, in this case the Florida Supreme Court upheld a plan to create a public beach through post-storm erosion restoration that results in a unilateral redefinition of the private owner's property line.
Likewise, in the recent United States v. Bailey decision, the Eighth Circuit Court expanded the definition of a “navigable waterway” that will dramatically expand the Clean Water Act and federal control of wetlands. Finally, even though economic development takings and blight condemnations have been eliminated by law in Florida, the remaining approved uses of eminent domain by public utilities or the department of transportation are subject to significant abuses.
The underlying reason why the reforms enacted in Florida will not be enough is because the property rights crisis has roots far deeper than the Kelo decision.
For almost a century, lawyers and politicians have attacked property rights as such. They have claimed that strict protection for property rights endangers “our common good,” that it threatens the environment, or that it frustrates our legislatures from enacting change in “the public interest.” The deepest meaning of this assault on property rights is the idea that something other than individual rights stands above the individual, that freedom must be sacrificed when larger demands come calling.
Since the Progressive Era and the New Deal, the courts have substantially weakened the constitutional protection for property rights because, they claimed, the legislatures are the proper battlegrounds for determining the limits of property rights. Yet those same courts' increased protection for political and civil rights runs counter to their objective.
At root, individual rights are like the Three Musketeers, all for one and one for all. A free society cannot claim to protect some individual rights while violating others.
As philosopher Ayn Rand observed, “without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product is a slave.”
The fundamental solution to the property rights crisis we face today is to identify and reaffirm the morality upon which property rights rest. We must reject the altruistic notion that the “public interest” and “common good” can dictate the limits of our behavior. Instead, we must embrace the idea envisioned by our Founders and further developed by Ayn Rand, that every man has a moral right to live for himself and to reap the fruits of his labor and to acquire, use, and dispose of his property according to the judgment of his own mind, for his own selfish purposes. Nothing less will save us.
Eric Daniels, Ph.D., is Research Assistant Professor, The Clemson Institute for the Study of Capitalism.