Now that the heat has faded from my outrage over the Supreme Court's decision about eminent domain in the Kelo case, I've taken a little time to read and think about it. And the analysis by a certain person I've learned I can trust, I"m not quite as panic-stricken as I was a couple days ago. In food terms (can you tell I'm just finishing dinner?), it's now at mustard and pickles level, from my prior Fear Factor Entree' response.
The decision is done, and the moving hand has writ. Screaming and wailing and gnashing of teeth might make you feel better briefly, but in the end all you end up doing is looking silly. The time has come to recognize the reality of the situation and deal with it.
Several people are calling for a Constitutional amendment to overturn the ruling. Frequent Wizbang guest McGehee has put forth over on his own blog his version of such a measure, and I think it would garner quite a bit of support. But, ultimately, I think any final version would be a bit less pointed than his.
But amendments take years to pass, and what do we do in the meantime? One school of thought is to let seizures go unchallenged, to keep up the public outrage and enthusiasm for the amenment.
But while I see the appeal and the possibilities behind such a measure, I have my own idea I'd like to put forth. And again, I need to thank Jeff for his digesting the actual Court decision.
The ruling in the Kelo case does very little. It simply says that state and local governments may seize private property for non-public uses, as long as there is a significant benefit to the community as a whole. It is recognizing the right of those bodies to do it, not encouraging it.
So, by extension, the states themselves can impose their own restrictions on when they exercise this power. And since state legislatures have been more responsive to the concerns of voters, I think this is where we should focus our attention.
The first restriction should be, I think, on the "just compensation" requirement. Corporations that want to use this ruling are going to perform simple cost-benefit analyses, and in many cases will probably decide that it will simply be cheaper to go through a government than to come to terms one-on-one with private landowners. So the first step should be to cut into the profit margins of takings.
One of the ways this has been abused has been to lowball "fair value" for the seized property. Often, towns will outright condemn a desired property, shredding its paper value and therefore cutting down on compensation.
My idea would be to set the value of the property in question to the value assessment done for property taxes. But it should not necessarily be the current value. It should be at the highest rate in the last five years. This will circumvent the "condemned" tactic, the long-term scheming, and other shenanigans.
Secondly, the owner should not simply be handed the same amount they could expect if they were selling willingly. There should be compensation above and beyond the value of the property, to cover the inconvenience and outright rudeness of taking someone's home from them without their consent. Once the property's value has been determined as according to above, there should be a 20% "bonus" tacked on as an apology.
Finally, the private entity receiving the seized property must pay the city or town doing the actual taking the above-mentioned price for the land, within a 5% margin. That will give the towns some leeway to either pass along their expenses in getting the land, or offer some incentives to the incoming owners -- whichever they should wish.
With these restrictions in place, we should be able to put some curbs on the possibility of wholesale takings for private gain. And putting serious pressure on your state lawmakers might not have quite the satisfaction of "salting" your property with radioactive material, as I've seen mentioned in one or two places, but it sure as hell is a bit more civilized.
UPDATE: My formula for calculating the costs of the seizure to the recipient has confused at least one person, so here's an example: Suppose the town of Bugtussle, West Virginia takes David Anderson's luxurious manse for a new Yoyodyne manufacturing plant. David's manse was last revaluated for $250,000, so the town pays that to him and a 20% "nuisance fee" of $50,000 for his land. David, fed up with Bugtussle politics, goes back to Costa Rica. (David doesn't mind that too much, if you've seen the pictures of Costa Rican women he posts on a regular basis.) Therefore, they have paid a total of $300,000 for David's land.
Now comes the time to transfer the land to Yoyodyne. Under the law, they must sell it to Yoyodyne for what they paid David for it, give or take five percent. One selectman wants to reward Yoyodyne for promising his worthless nephew a job, so he pushes for a 5% cut, or $285,000. Another used to go fishing with David, and will miss him, so he's steamed at Yoyodyne. He wants to tack on that 5%, and charge them $315,000. The entire board fights for a while, and settles on charging Yoyodyne exactly what the town paid -- $300,000 -- no more and no less, and the town eats the costs it incurred in taking David's land (lawyers, transfer fees, surveyors, and the like).