Should a simple majority vote determine whether you should enjoy the privileges of free speech, the right to vote, or practice religion? The idea would repulse most Americans. Our Constitution enshrines these rights as core values in our American democracy.
Yet, a similar question about core principles is unfolding in a Hamilton County courtroom as the city of Norwood defends its right to forcibly take the property of some of its residents and give it to another private party. The city thinks a private developer has a better plan - he wants to build condominiums, offices and a few stores in place of the older, quaint homes owned by more than 70 homeowners and businesses. About 10 percent of the property owners don't want to sell. So the city is forcing them to.
This summary may seem simplistic, but it captures the essence of how eminent domain is used in America's cities. Governments no longer have to show their projects will serve a public use, or that the primary benefit will be to the public, not another private person or business. All it takes is the city council mustering a majority vote to decide whose plan is better. Homeownership becomes a privilege granted by the local government.
In the current environment, respect for private property rights will not protect citizens against abuse by the fickle (if well-intentioned) will of the political majority. Under increasingly loose definitions of "economic development," property no longer has to be blighted, in significant disrepair, or be a public nuisance to be condemned and sold to someone else.
This isn't the way eminent domain is supposed to work. Eminent domain was originally envisioned as a tool of last resort - invoked only when no other alternative existed and a public use was evident.
Cities and economic development advocates, however, have helped broaden the reasons to justify condemning private property to include just about any justification that can be mustered by a majority on city council. Norwood is not unique. In some areas, such as Mesa, Ariz., eminent domain was the only tool for economic development. The state legislature broadened the criteria for its use so much that cities and private developers decided it was cheaper and faster to take private property (with compensation) than buy the property through the real estate market.
Moreover, the benefits of the proposed project in Norwood, like all economic development projects, are speculative. Market conditions will determine its success. While a solid plan improves its financial prospects, profitability is uncertain. Most benefits will accrue to the private developer and those using the services, not the general public.
Eminent domain's original purpose was to give governments flexibility to provide public services such as roads. This flexibility was significantly constrained by a Constitution that protected private property rights as a fundamental civil liberty. Now, however, in the name of economic development, eminent domain is used to serve the interests of private parties looking for cheap ways to circumvent the real estate market rather than serve legitimate public purposes. The result is a process where private property rights and homeownership are subject to the whims of politics and are not the result of mutually beneficial exchange in the market.
Samuel R. Staley is president of the Buckeye Institute for Public Policy Solutions, an independent, nonprofit education and research organization based in Columbus. Though not involved in the Norwood case, he served as an expert witness for the Institute for Justice in an eminent domain case in Mesa, Ariz. The Institute is litigating to protect several families' homes from eminent domain in Norwood.
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