Eminent Domain: The New American Feudalism

Jim Amrhein gives us some startling advice in the wake of the recent Supreme Court decision on Eminent Domain, then points out that that decision wasn’t the first blow against our private property rights, but the final one.

The New American Feudalism

A WHISKEY & GUNPOWDER reader and friend of mine recently said to me that although he enjoys the column immensely, he often wishes that we’d offer some kind of actionable advice along with our missives.

Of course, my response to him was that short of armed revolt (DHS spooks, I’m just kidding — put the Uzi down), I really couldn’t recommend much in the way of “actions to take” to prevent our rights and freedoms from being stripped away. About the only thing you or I or anyone else can do is continue sounding the alarm and hope rank-and-file voters will respond at the ballot box…

But that’s not the case today. No, sir. Today, I’m suggesting something real you can do to protect yourself from the out-of-control oppression machine our government has become:

RUN. Beat it. Amscray. Get the hell out of Dodge.

No, I’m not kidding. Sell your house right now (while you can get three times its value), pull up stakes and move to the most nondescript, forgotten, or downright unlivable piece of real estate you can buy. Some backwoods knob in the mountains of West Virginia or Kentucky, maybe. Or a worthless piece of desert out West somewhere. Maybe somewhere in the middle of Tornado Alley on the Midwestern prairie. Need waterfront to be happy? Instead of Kennebunkport, think “bayou backwater”…

Why? Because according to last Thursday’s Supreme Court ruling (case 04-108, Kelo et al v. City of New London), you’ve just lost all your rights to whatever real estate you’ve worked and struggled so hard to secure for yourself and your posterity.

In the wake of this decision, in order to have any truly private property, you’ll have to own a chunk of land so undesirable that no state government could ever possibly deem a better use for than your ownership of it.

Eminent Domain: Principal Versus Principle


Just to recap briefly: The Supreme Court ruled last week that states have the right under the “eminent domain” provision of the law to force the sale of privately owned property directly to private-enterprise interests in the name of a region’s economic prosperity. In Case 04-108, this refers to 15 homesites in the languishing waterfront district of the quaint, quiet burg of New London, Conn…

Here’s why this case is so important: Heretofore, eminent domain has typically only been invoked to secure lands for public infrastructure needs — roads, bridges, prisons, schools, etc. But now, with one stroke of its all-powerful magic scepter, the highest court in the land has given your home state the power to kick you out of your house to install a Wal-Mart, Starbucks, Motel 6, Krispy Kreme, or anything else it thinks would pay it more than whatever your property taxes add up to.

This isn’t progress; it’s a return to 12th-century feudalism! Under this new premise, you in effect no longer own your property. You’re simply allowed by the benevolent grace of the state — the “lord of the land” in feudal terms — to pay taxes (and a mortgage) for the privilege of occupying it. You’ve become a serf . Funny, I thought the Supreme Court was supposed to advance the cause of liberty and freedom, not bludgeon it back in time to the Dark Ages…

Justices (a misnomer in this instance) Stevens, Souter, Ginsburg, Kennedy, and Breyer — all poster children for an activist judiciary — rendered the decision, which sells down the river one of the fundamental principles that made this country what it is: private property rights. Predictably, conservatives O’Connor, Rehnquist, Thomas, and Scalia dissented, O’Connor brilliantly so in a scathing opinion that’s suitable for framing.

Proponents of this decision (they’re sitting, salivating, on city councils all over the country right now) will no doubt be quick to claim that the “eminent domain” doctrine is perfectly applicable here — after all, who wouldn’t agree that the economic development of a region serves the greater public interest? Well, for one, anyone who bought a house on the water in some quiet little burg to get AWAY from the Starbucks, Holiday Inns, and Quiznos of the world, that’s who. The decision in Case 04-108 has just erected a giant middle finger to all those folks!

Beyond this, we should ask the question how much privately owned real estate wouldn’t make the state more money if it were a Jiffy Lube or a KFC? Not much of it. That’s why it should be obvious to any thinking person that this decision is nothing more than a sellout of Supreme proportions that grants free license to businesses to buy up all the prime land in this country — and converts state comptrollers’ offices into the equivalent of real estate agencies with guns and government badges.

Eminent Domain: Blueprint for an American Town…

Regardless of how the U.S. higher courts are bastardizing it, the eminent domain doctrine was not conceived to allow the government to sculpt boomtowns out of privately owned land. And just because a roundabout argument can be made that certain of the public’s best interests might be served via the corporate and sales tax dollars such a process might yield, that’s no reason to flush small-town America (not to mention the Constitution) down the toilet.

And that’s exactly what could happen in the wake of this horrendous decision.

Think about it: If states now have the right to redesign their slower-paced or less-than-thriving municipalities for maximum tax revenue — hotels and marinas along the water, restaurants, bars and shops along the main drag, shopping malls and movie theaters on the outskirts of town, residents in the ever-spreading ‘burbs — the very souls of all the wonderful, unique places that give our country its color and diversity will slowly but surely be diluted into cookie-cutter clones of the same city: Dollartown, USA.

Once this happens, the only places with any color or American character left will be those forgotten mountaintops or backwaters that people like us have been forced from our Main Street homes to occupy. That is, until the state decides to force you to sell your lot to Outback Steakhouse as the cornerstone of the next mountain boomtown…

What’s really seedy about this whole situation is that the application of the eminent-domain-as-engine-of-economic-renewal concept is far from unprecedented. The reality is that cities have been using eminent domain to indirectly facilitate private enterprise for a long time. They’re just creative about the ways they do it.

A great example of this is stadiums. The reason a lot of modern downtown sports stadiums are owned by the cities they’re located in and built with public monies is not solely to attract a team. Rather, it’s to justify the leveling of whole boroughs under the eminent-domain doctrine to make room for the thing. If the public owns the stadium, it’s infrastructure . It doesn’t matter that the ones who profit most from the venue are team owners, drink manufacturers, and food vendors — private ventures the lot.

But now that the Supreme Court has given this practice its official seal of approval, no lot is safe if you live in a state that’s hungry for revenue.

Now, there’s no need for cities to try to structure shamelessly profit-driven land grabs into the appearance of public infrastructure plays — it’s all now perfectly aboveboard for them to get in bed with big business, issue some eviction notices, cut a few checks, then rake in the tax money while you go house hunting in the midst of a bloated real estate bubble!

And you better sell before Big Brother starts eyeing your house on the hill. If it earmarks yours as the site of a new Walgreens, who knows how much it’ll give you for your home? Will it use property tax indexes to determine value? There’s often a considerable gap between fair market value and what a property assesses for on outdated tax rolls.

For instance, my house is taxed at an estimated value that’s more than a third less than what it would fetch on the open market if I listed it tomorrow. If the state decided to force/buy me out for what it says my house is worth, it wouldn’t even cover my mortgage . I’d end up owing money for getting the boot!

Eminent Domain: And a Requiem for the American Ideal

Here’s the real irony in all this: Because the Supreme Court has now ruled on this subject, everyone’s talking about private property rights all of a sudden. It’s as though this is the first chip to be chiseled out of a pristine and sacred stone of white marble that represents your constitutional right to property…

But it isn’t a first chip; it’s more like the final hammer blow that topples the stone completely. Your property hasn’t truly been yours for a long time. Don’t believe me? Try building an addition on your house, or even a deck off the back.

Depending on where you live, you’ll find out real quick just how little you can do with your own property without the Man’s permission. IF you’re even allowed to do the work yourself (What? You don’t have a contractor’s license?), you’ll have to apply for a permit, submit to a review of plans, endure multiple inspections — maybe even suffer through a public hearing.

It isn’t just home improvements, either. Want to start a small business from your home? Better check with the zoning board and your neighborhood’s covenants — it might not be allowed at all (even if you’re a one-person outfit, like a columnist). Want to rent out that spare room for a few extra bucks? Chances are that’s not legal, either, you outlaw!

And it you think this kind of BS only happens in the city or the suburbs, think again. Where I live, in central Maryland (though I’m sure it’s the same in any other Eastern state with too much money and not enough sense), even vast tracts of rural land miles outside of any city are subject to ludicrous over-regulation.

For instance, it’s nearly impossible to put a body of water larger than a wading pool on any piece of land in the Baltimore metro hinterlands. If your dream home has a pond for your kids to swim in that’s chock-full of bass and bluegills for you to catch, you almost have no other option than to wait until a older home with an existing pond appears on the market for a billion bucks or so…

Why? Because there are environmental regulations against any warm water discharge draining into cooler creeks and streams.

Also, a pond is an “attractive nuisance.” If it’s deeper than a birdbath, someone (never mind that they’re trespassing ) could fall in and drown! Sorry, but your permit application has been denied. Next, please. Oh, and that big bonfire party you’re planning for the Fourth of July? Better not — I’m pretty sure there’s a ban on open burning, for air-quality and fire-safety reasons.

And if you really want a headache, try putting a shooting range on your land, no matter where you live!



Eminent Domain: Resistance Is Feudal

My point is this: It shouldn’t take a landmark decision by the Supreme Court to get us up in arms about the government’s erosion of our private property rights. Between public safety ordinances, environmental over-regulation, zoning restrictions, building codes, neighborhood covenants and eminent-domain doctrine, we serfs barely have any of them left in this feudal fiefdom our country has become.

The vision of the framers in which we’re each free to use a combination of our industry and property to create wealth and success for ourselves is dead and gone — and it’s our own fault for letting it happen unchecked…

In many ways, the 800-pound gorilla of government has simply become too powerful for us to fight on this point (or on any other point, for that matter). Sure, we can vote our minds, but we’d be voting merely to try to slow or freeze the erosion of our rights, not to reinstate any of them. That would require eliminating a library full of laws, and you know what the odds are of that happening.

So what can be done, you ask? Only one thing: Like I said before, you can take your money, energy, and expertise and move to a more primitive, more American place far removed from the tainted metropolises that have siphoned away so many of your rights. There are a few such places left: Wyoming, West Virginia, Arkansas, New Hampshire, and a few others…

And I really do hope to meet you in one of them someday, before they’re all gone.

Sincerely yours,
Jim Amrhein
Contributing Editor
Whiskey & Gunpowder
June 28, 2005