Eminent domain bill won’t prevent a state version of Kelo

Barry Smith writes at the Carolina Journal that Rep. Chuck McGrady has proposed an amendment to the N.C. State Constitution barring the government from taking private property except where there is a “public use,” which is the traditional standard enshrined in the federal constitution. The amendment would also require “just compensation” (whatever that is), which is also the standard required by the U.S. Constitution for federal takings.

Being relatively new to the Tar Heel State, it is news to me that North Carolina’s constitution doesn’t specifically protect against eminent domain abuse. Article I, Section 19 does protect individuals against deprivation of “life, liberty, or property, but by the law of the land,” but that amounts to a declaration that the state may take our life, liberty, and property as long as it can point to some obscure law it interprets as allowing for it.

Daren Bakst stated in a 2011 report from the John Locke Foundation that “North Carolina has the weakest property rights protection in the country,” and there is no mention in the constitution of eminent domain.

Even with a federal law prohibiting takings except for public use, Kelo v. New London still happened–that was a 2005 case in which the U.S. Supreme Court decided “economic development” by a private company counted as a “public use.” So if North Carolina adopts an amendment, it better be stricter than the Fifth Amendment of the U.S. Constitution. Much stricter, with much more precise wording.

The John Locke Foundation has been fighting the battle for years, and this new amendment would probably not be happening without its efforts. There are some weaknesses in McGrady’s bill though. First, it allows for utilities like electric and gas companies to seize private property. This is cronyism–allowing private providers of utilities to profit off of stolen goods is not a legitimate government function. Second, there is nothing preventing the same abuse that happened in Kelo. Bakst’s report recommended that an amendment “require the government to have the burden of proof to demonstrate that a taking is for a proper public use.” Even that is too lax–it relies on the government to limit itself–but McGrady’s bill doesn’t address burden of proof.

In short, McGrady’s bill protects us about as much as the Fifth Amendment, which Kelo proved isn’t much of a protection at all. It’s probably better that this bill passes than not, but it doesn’t go as far as Bakst, who didn’t go far enough.

Article I of the N.C. State Constitution, the declaration of rights, holds that the people are sovereign and that “all political power is vested in and derived from the people.” Last I checked, people don’t have the right to take each other’s stuff. Let’s hold the state to its own words.

 

 

 

 

 

 

Harry Painter

Harry Painter writes for the John W. Pope Center for Higher Education Policy.

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