This might come as a shock, but there actually is a bipartisan issue in North Carolina. Legislators from both political parties agree that a constitutional amendment to protect North Carolinians from eminent-domain abuse is necessary.
However, bipartisan support doesn’t mean much in the General Assembly. Since a few legislators control everything that gets considered in the legislature, and frequently ignore the will of the people, an amendment will be an uphill climb.
Last year, the legislature passed weak eminent-domain legislation, despite having 88 sponsors in the House for a bipartisan constitutional amendment. This session, the House has a bipartisan constitutional amendment that has 96 sponsors. It needs only 72 votes to pass the House.
Other states have taken real action since the U.S. Supreme Court’s 2005 decision in Kelo v, City of New London. The court held that private property can be seized from one private citizen and transferred to another for economic development. So, if your house might generate more tax revenue if it were a fast-food restaurant, then the government can take it and give it to a fast-food business.
In 2006, seven states, including neighboring states such as Florida, Georgia, and South Carolina, passed constitutional amendments. Some legislators want us to believe that legislation can protect against “economic development takings.” This is akin to arguing that we don’t need an equal-protection clause or freedom of press in the state constitution because the legislature will pass legislation to protect us.
As much as a constitutional amendment is needed, it has to be the right amendment. An amendment needs to limit the taking of private property to what has traditionally been understood to be a “public use.” This means a use by the general public or by the government. It also should mean a use by a utility or common carrier in fulfilling its public role.
An amendment has to be carefully drafted to protect against the usual overbroad definition of blight that allows the government to take property for almost any reason. It is critical to understand that blight laws are how most economic development takings occur. Blight is the excuse for taking private property for economic development reasons. It is the abuse of blight laws, often called urban redevelopment laws, which demonstrate that eminent domain isn’t just a property rights issue. It also is a civil rights issue.
NAACP Washington Bureau Director Hilary O. Shelton argued in 2005 Senate testimony, “Indeed, the displacement of African-Americans and urban renewal projects are so intertwined that “urban renewal” was often referred to as ‘Black Removal.’”
There is a reverse Robin Hood effect when it comes to urban renewal laws. The government takes from the poor and gives to the rich. The reasoning is fairly self-evident. The government isn’t going to redevelop areas that have wealthy people. Instead, it will take property in areas where there is little economic growth and the properties cost less to seize. The property owners also are far less likely to put up any type of legal fight because they can’t afford to.
A recent Institute for Justice report explains how the Federal Housing Act, which was in effect from 1949 to 1973, addressed blight and in doing so displaced a disturbing amount of individuals. “In 24 years, 2,532 projects were carried out in 992 cities that displaced one million people, two-thirds of them African American.”
An amendment also needs to ensure that just compensation is “just.” The House Select Committee on Eminent Domain Powers, which issued an interim report in 2006, identified several issues it was going to consider after the 2006 legislative session, including just compensation. For no apparent reason, the committee never met again.
Few people, including legislators, disagree that an amendment is needed. The only question is whether a few political leaders can stop the enactment of an amendment supported by most legislators. If they can, we not only don’t have adequate property rights in North Carolina, we also don’t have a functioning legislature.
Daren Bakst is the legal and regulatory policy analyst for the John Locke Foundation.