Monday, October 12, 2015

Your Domain, Their Domain

It may be possible to trace the evolution of Eminent Domain from a U. S. Supreme Court Kelo vs. New London decision to its broader use by the Malloy administration.

In Kelo vs. New London, the high court decided it was proper under the “just compensation” clause of the Fifth Amendment to the U.S. Constitution for a state to use eminent domain to transfer property from one private owner to another private owner in order to further economic development. The “just compensation” clause of the Fifth Amendment provides that no person may be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the “takings clause” of the Fifth Amendment.

The decision, much criticized at the time, was a radical departure from previous applications of the “taking clause” doctrine, because the broader definition disregarded what many considered the proper deployment of eminent domain -- the taking of property for public use. It is one thing for the state to take private property for the building of a highway or bridge, quite another for the state to take private property to benefit a private employer. A definition so elastic as to permit the state on behalf of Pfizer, a pharmaceutical giant, to seize a private home for economic development essentially removes all restraints on the taking of all private property – when the operative legal qualification is “economic development” rather than “public uses.”

We all know that Pfizer came, conquered and went soon after benefits provided by Connecticut’s state government lapsed. The space once occupied in New London by Pfizer now resembles a barren and lifeless moonscape. Mrs. Kelo’s pink house is gone, Pfizer is gone, and the New London property taken by eminent domain, vacant and forlorn, now stands as a stern reproach to errant Supreme Court decisions and the hubris of overreaching governors. It was former Republican Governor John Rowland, now awaiting his second stint in prison, who brokered the Kelo, City of New London, Pfizer deal.

Two lessons may be drawn from the Pfizer eminent domain fiasco: 1) that the “takings clause” of the Fifth Amendment should not be invoked to transfer property from one private party to another, and 2) that, when employed correctly, eminent domain should be used sparingly. It should never be deployed for political purposes, nor should it be used destructively to vacate what has been called the doctrine of subsidiarity, which holds that nothing should be done by a larger and more complex organization that can be done as well by a smaller and simpler organization. This principle, which recognizes the importance of federated governance and respects the integrity of federal, state and municipal governance, is a bulwark of limited government and personal freedom. As such, modest governance often and rightly conflicts with the passion for centralization and bureaucracy characteristic of the progressive itch to decide all matters from a loftier purview.

The destructive movement towards governmental centralization is the dominant motif of the Malloy-Sharkey-Loony administration. Speaker of the House Brendan Sharkey and President Pro Tem of the Senate Martin Looney are the handmaidens of the most progressive administration in state history.

Alexis de Tocqueville – still, after 180 years, the most lucid commentator on American democracy – warned of the dangers of a centralized administrative state that would degenerate over time into a paternalism directing the individual in all his affairs, assuring that all his needs would be met: “For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances; what remains, but to spare them all the care of thinking and all the trouble of living?”  

The blood of de Tocqueville still runs hot in the veins of State Representative Gail Lavielle who, in a piece written for CTNewsJunkie, “Eminent Domain on Steroids? A New Bill Threatens Cities and Towns,” sounded an alarm against governor’s bill HB 6851. Though the bill’s purpose -- to promote transit-oriented development -- was laudable, Mrs. Lavielle wrote, HB 6851 “would strip towns and cities of part of their local planning and zoning decision-making authority by transferring it to a board of state-level appointees. It would also permanently expose all those who own property anywhere within half a mile of a rail or bus station to the threat of eminent domain.”

Transferring legitimate administrative powers to unelected appointees always has been the chief tool used by autocratic governments. The transfer of power protects the executive office by insulating the chief executive from the democratic wrath of those most affected by decisions promulgated by subalterns but shaped by the chief elected administrator of public affairs.

For the time being, owing mostly to Mrs. Lavielle’s loud and persistent protest, the bill has been sent back to the shop for revision. It is not likely, however, that the enemies of the principle of subsidiarity will relent in their efforts to spare the people “all the care of thinking and all the trouble of living?” The price of liberty is eternal vigilance, and republican government can only be upheld by watchful representatives. In her defense of liberty and self-government, Mrs. Lavielle ought not to be a majority of one.
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