 In November, Texas voters passed several Constitutional amendments to strengthen private property rights in our state. One of the most important amendments added protections for citizens against a government entity’s unjust taking of private land and homesteads through eminent domain.
The amendment was in response to the controversial 2005 U.S. Supreme Court case Kelo v. New London. In a 5-4 decision, the Court ruled that a governmental entity could condemn privately owned real property for economic redevelopment. That type of eminent-domain taking may seem like a laudable goal. The city of New London wanted to revitalize a “blighted” urban neighborhood, create new jobs, and increase taxes and other city revenues. The problem was that the plan called for transferring the condemned property to another private party: the Pfizer Corporation, in this instance.
Historically the law of eminent domain in the U.S., Texas, and other state constitutions has had a narrow scope – namely that any taking be used for a public benefit or use. This had always meant a direct public benefit, like a highway, bridge, or municipal building.
In Kelo, the U.S. Supreme Court greatly expanded what fell under the range of a “public good.” This prompted state legislatures across the country to enact legislation to add protections to private real property, including a measure passed by the Texas Legislature that essentially refuted the Kelo decision. Yet, both the Legislature and the Texas Association of REALTORS® felt it was imperative to strengthen the protection already in place. Thus the amendment ensures that only through a super majority vote and a popular referendum could these extra protections ever be taken away from Texas citizens.
|
If governmental entities had full discretion on what was a public good, all private real property would be at risk of being appropriated for the public good. That fact reminds me of one of my favorite plays, a Man of All Seasons. In it, Sir Thomas More, who was the Lord Chancellor for Henry VIII, champions the principle that the people in power should never act capriciously and arbitrarily in contravention of the law. More holds to that belief even at the risk of losing his position, his property, even his life. He analogizes due process to the thickets of the forest, arguing that if society chooses to chop down the laws, when you are targeted, there will be nowhere to run to hide. As he eloquently put it, “Yes, I’d give the Devil the benefit of law, for my own safety’s sake.”
One of the great ironies of the Kelo case is that the city exerted their eminent domain powers to placate Pfizer and induce them to expand their facilities. As of September 2009, though, the land where Ms. Kelo’s home once stood is an empty lot. The promised 3,169 new jobs and the $1.2 million in additional tax revenues never materialized. To add insult to injury, in November 2009, Pfizer announced it would close it New London research facility.
That type of situation will not happen here. With the passage of Proposition 11, Texas has planted a plethora of seedlings, which will one day grow into a forest of protections for the citizens of our great state.
|
