Today’s “Daily Journal” guest columnist is Daren Bakst, Legal and Regulatory Policy Analyst for the John Locke Foundation.
The N.C. House committee members studying the use of eminent domain in North Carolina may think they are hearing echoes. State and local government leaders and their representatives keep saying the same thing. They keep requesting that the legislators on the committee should “first, do no harm.” At Wednesday’s meeting, the Department of Commerce’s representative repeated these exact words.
When they refer to harm, they aren’t referring to harming property rights and other individual rights. Instead, they want no harm done to the government and its power to condemn property. The last time I checked, the legislature was in the business of protecting and representing individual citizens, not ensuring that government agencies have enough power.
However, let’s assume we grant them their wish—they can seize private property as always, despite what that means to fairness and individual rights.
Some leaders and organizations, such as the N.C. League of Municipalities, continue to argue that state and local governments in North Carolina can’t seize private property for economic development reasons, as was permitted in the U.S. Supreme Court case in Kelo v. City of New London.
If this is true, then why should they have any problem with the legislature enacting a law expressly prohibiting these economic development takings? It wouldn’t do any harm, given their arguments—they can’t take private property for economic development reasons anyway.
The problem, of course, is economic development takings are allowed. First, to make it absolutely clear, there is no general state law that explicitly allows for the state and local governments to take property for economic development reasons. In each committee meeting so far, there have been arguments made that the public doesn’t understand this point and the media is to blame for the disinformation campaign. Isn’t it more likely that North Carolinians do understand the issues and simply are concerned with private property rights?
Local acts (laws passed by the legislature affecting a specific local community) have expressly allowed property to be taken for economic development reasons. The state’s urban redevelopment law is so broad that there is a chance that in many instances, property could be taken for economic development reasons.
Before Kelo, the Supreme Court had never held that state and local governments could constitutionally seize private property for economic development reasons. After Kelo, these types of takings have been declared to be constitutional.
The counterargument then goes something like: state and local governments don’t want this power and wouldn’t take property for economic development reasons. If this is true, then why did the N.C. League of Municipalities sign on to the Connecticut Conference of Municipalities’ amicus (“friend of the court”) brief supporting New London in the Kelo v. City of New London case? Why are there local acts allowing economic development takings and an urban redevelopment law that could also permit these takings?
“First, do no harm” proponents also are concerned that changes to the urban redevelopment law could prevent local governments from addressing blight. They are right—the ability to address blight shouldn’t be harmed. However, they shouldn’t have any problem with amending the urban redevelopment law so that it prohibits the taking of non-blighted property. They shouldn’t care if property can’t be seized in redevelopment areas that don’t meet the statute’s own definition of a “blighted area.” Where would the harm be if they are only interested in addressing blight?
The House eminent domain committee should be commended for studying the critical issue of private property rights. They shouldn’t be asking how they can first do no harm to government power. They should ask themselves how state and local governments can first do no harm to individual rights.
This is a critical time for private property rights in North Carolina. The work the committee does now could affect North Carolinians for generations to come. If the committee members do cause harm and make mistakes, it is much better that they err on the side of protecting individual rights than ensuring that government has necessary power.