Wednesday, January 04, 2006
On this day:

Riley supporting constitutional amendment to limit eminent domain

Last summer, Alabama became the first state to restrict its own eminent domain authority in response to the U.S. Supreme Court's decision in Kelo vs. City of New London. Now, Gov. Riley wants to put that law into the state constitution.

This is a certainly a welcome proposal, but some property rights advocates argue that it wouldn't go far enough, since the new Alabama law still allows municipalities to use eminent domain to alleviate "blight" in their neighborhoods. That's the same justification that the city of New London, Connecticut used in the Kelo case. Last year, an attorney for the Institute for Justice, the libertarian public interest law firm that represented the New London homeowners, noted how the Alabama loophole could be abused:
“Kudos to Alabama political leaders for taking the first step toward protecting their citizens from eminent domain abuse,” said Institute for Justice Senior Attorney Dana Berliner, who represents Susette Kelo and the other New London, Conn., homeowners fighting to save their homes. “But there is more work to do. For full protection of Alabamians’ rights, legislators must reform the blight laws that all-too-often provide a sham justification to use eminent domain for private profit. Today, blight can mean literally anything the government wants it to mean, and as a result, homeowners’ rights remain in jeopardy.”
A couple of Alabama legislators want to ensure that any constitutional amendment addresses this directly.
(AP) Sen. Larry Dixon, who helped write the new eminent domain law, said the fight won't just be over putting the current law into the constitution. It will also be over making the constitutional amendment stronger than the law.

Dixon, R-Montgomery, said he will propose a constitutional amendment that would prohibit the use of eminent domain to remove blighted neighborhoods. Rep. Gerald Allen, R-Cottonwood, said he's working on a similar constitutional amendment that will restrict or ban the use of eminent domain in blighted neighborhoods.
I tend to favor "restricting" over "banning," but with a few reasonable safeguards:

1) Voluntary transactions in the free market are always preferable to coercive takings by the government; thus, restrictions should be strong enough that the use of eminent domain authority is viewed by state and local officials as a measure of last resort;

2) The eminent domain power should only be exercised when there is a specific, immediate, and legitimate public use for the property that is to be taken;

3) The government's power of eminent domain should never be used to transfer property directly from one private owner to another;

4) The sale of public property attained through the use of the eminent domain power should be strictly regulated, along the following lines: The sale of such property to private parties other than the previous owner should be prohibited for a period of 5 or more years; the property should be auctioned publicly, under fair and equitable rules established by the legislature; the public should be given reasonable notice of such a sale; the previous owners of the property or their heirs should be notified of the government's intent to sell, and they should be allowed to bid on the property under the same rules as other interested parties.

Following the Kelo decision (which I thought was correct, by the way), it is clearly up to the states to protect private property against eminent domain abuse. So far, Alabama has led the way in addressing this issue. This year, the Governor and legislature have a chance to lead once again by making Alabama the property-rights capital of the nation. Let's hope they deliver.