Campbell University law professor Pat Hetrick recently discussed the re-definition of property with the John Locke Foundation’s Mitch Kokai following Hetrick’s address to the John Locke Foundation’s Shaftesbury Society recently. The interview aired on Carolina Journal Radio (click here to find the station near you).
Kokai: Property rights — we all know that they are important. We want to keep the property that we have and would like to think that the right that we have to keep that property is strong. You made the case in your discussion that this right has eroded, especially over the last 50 years or so. Tell us a little bit about what types of things have changed our concepts of just what belongs to us.
Hetrick: Okay, Mitch, first of all, one of the points of my talk was that the United States Supreme Court seems to have a disconnect between the liberty rights of individuals and property rights. It seems like they are very strong on individual liberty, but they are starting to cease connecting those rights with private property rights. In the past 50 years there has been an erosion of private property rights through taking these cases, including the now famous or infamous Kelo case out of New London [Conn.].
Kokai: One of the things that you mentioned is re-definition of property, that some of those changes come about because of the way things are defined.
Hetrick: Right. And so the Kelo case, for example, which originally starts out in jurisprudence as public purpose, melds into public use, and then the definition of public use sort of melds into private use, with secondary benefits to the public. So, pretty soon, as Justice Sandra Day O’Connor said in the dissent of Kelo, this means we can turn any Motel 6 into a Ritz-Carlton or farm into a factory. The state does a good of job redefining property also. The case that I dealt with today involving the public trust doctrine and navigable waters basically redefined property rights of people who formerly owned property below some navigable waters in North Carolina.
Kokai: Just how concerned ought people to be with these changes in property rights?
Hetrick: I think they ought to be concerned because the one trend that I noted was that legislation is passed to eliminate certain title defects or ancient claims, and if you do not re-record or re-register your claim, then those property rights are eliminated. So, I think that the average citizen should be somewhat concerned about that.
Kokai: One of the things that caught my ear when you were discussing this was that a lot of these changes come about for what are believed to be pretty good causes, but perhaps the end justifying the means might lead to some deleterious affects along the way.
Hetrick: Right. The majority of the public probably favors most of the causes — for example beach access, use of the wet sand area of the beach, rails to trails for bike trails, and hiking trails and those kinds of things are important to society — but when we take private property to achieve those goals, we ought to be paying just compensation under the Constitution.
Kokai: You mentioned at one point that there was a middle ground at one time between the absolute protection of private property rights and the process of allowing the state or local governments, or any form of government, to take the property needed for legitimate uses. But now, you argue that perhaps that middle ground is gone.
Hetrick: I think the middle ground that existed several decades ago — I think that when the United States Supreme Court went from taking blighted, dangerous neighborhoods and redeveloping them, which was to me a legitimate public purpose public use — when instead they went to New London, Connecticut, and took a neighborhood that was a community that was not blighted and that simply they wanted to replace with a more important economic use — that they crossed the line … the middle ground is that the government has legitimate public purposes and interests in using private property if they pay for it, and yet at the other end, private property is a sacred tradition in this country and the bedrock of liberty in this country. When you steer the high court toward the redefinition of property, where private property means less today than it certainly meant before the Kelo case, then you have left the middle ground and are clearly favoring the state over the private property rights of individuals.
Kokai: If this topic of private property interests you and you want to hear what Professor Hetrick has to say again, you can on the Carolina Journal Radio podcast. Just log on to CarolinaJournal.com, find the CJ Radio button and you can find all the information about the weekly Carolina Journal Radio podcasts. So, Professor Hedrick, we have talked about some of the problems. Is there something we can do about it?
Hetrick: Yes, I think the United States Supreme Court in the Kelo case left it up to the states. If the states want to have a view of this issue that favors private property owners, then the United States Supreme Court said that the states should feel free to adopt a different rule on this — a rule that protects private property more than the federal decision. So, according to the United States Supreme Court, it is up to the states if they do not like that decision, to improve upon it — I think improve upon it by protecting private property. So, I invite our General Assembly to do so.
Kokai: And in fact, our state House does have a select committee on eminent domain powers looking into this very issue. Is there something that the group can recommend to the full General Assembly that would be a good way to prevent Kelo-type takings here?
Hetrick: I think the best way is, local governments, counties, and cities cannot condemn without the authority from the General Assembly to condemn. If the General Assembly states in legislation that this is not within the powers of a county or city government, for example, or another condemning authority, then they have no power to condemn for that purpose and it will be an effective way to handle it.
Kokai: There is probably a tendency among many folks when they hear about a case like the Kelo vs. New London case in Connecticut, or in some other state, to say, “That is not going to happen here; that is not the type of thing we need to worry about in North Carolina.” But just how likely, from your vantage point, is North Carolina to follow this trend that we have seen in other states of allowing more and more types of takings if nothing is done about it?
Hetrick: Well, the interesting side-effect of >Kelo is that it has raised awareness and general disapproval from the public, of the [Supreme Court’s] opinion. So, it is sort of interesting that an opinion that basically liberalizes the power to take might have the effect nationally of actually limiting the power to take. If the states react properly to Kelo, they will rein it in and make it more difficult for government to take, simply to replace a very nice neighborhood with a new motel or hotel or casino or whatever else they want to put in there. So, I think Kello has had an interesting side-effect that is actually a good one from the standpoint of private property owners.
Kokai: And do you think that the public reaction is going to lead to some good benefits in terms of new constitutional amendments or new laws in the days ahead?
Hetrick: I think the General Assembly of North Carolina and the state legislatures of most states are very aware of a general public disapproval of Kelo, at least as they understand it as reported on television and in the newspapers. So, again, I think that the net result of Kelo might be a reining in of this power under the state government.