Protecting Homes and Liberties

California's Prop. 90 seeks to protect property rights

If we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion.

– F. A. Hayek, The Constitution of Liberty

A man’s home is his castle, and state and local governments are storming the gates. To any defender of liberty, one of the most offensive practices to come into vogue is that of possessing one man’s home or business against his will in order to give it to another more favored person or business. California’s Proposition 90, “The Protect Our Homes Act,” seeks to prevent such injustices. Government planners and others bemoan the threat of not being able to dictate what everyone else should be able to do with their own property. Property owners and liberty-lovers, however, should rejoice at such a curb on these iniquitous violations of personal freedom.

Prop. 90 explicitly prohibits state and local governments from using eminent domain to take private property from someone and give it to another private party. This despicable practice has been used increasingly in recent years to provide greater tax revenue to local governments. For example, they invoke eminent domain to evict homeowners to make land available to a developer of luxury condominiums, or boot out small businesses in favor of large retailers.

A 2003 report entitled Public Power, Private Gain from the Castle Coalition, an organization that fights eminent domain abuses across the country finds:

California is one of the most active states in condemning properties for the benefit of other private parties. Between 1998 and 2002 – cities and redevelopment agencies condemned at least 223 individual properties for the benefit of private parties and threatened at least another 635.

Prop. 90’s restrictions on eminent domain abuse seem pretty commonsense-unless you are: (1) a developer out to curry political favor to get an otherwise difficult project at a bargain price, (2) a corrupt legislator willing to take campaign donations off a developer’s hands for such a project, (3) a greedy legislator who wants more money to play with by substituting the tax revenue of a Costco for that of a few homeowners, or (4) a government bureaucrat looking for a way to flex your muscles and assert your importance because, by golly, you know better how to use that property than the rightful owners do.

Unfortunately, many have ignored the issue of eminent domain abuse because, they believe, it does not directly affect them-until one day it does. The U.S. Supreme Court’s now-infamous Kelo v. City of New London decision last year put the issue on many property owners’ radars, however. People realized that if it can happen there, it can happen here, too. If the government can arbitrarily take your property against your will and force you to accept an offer of “just compensation” that may or may not be fair, how much do you really own your property?

The Kelo decision ignited a firestorm of state and local measures intended to protect property owners from similar eminent domain abuses. Unfortunately, many of these measures were so watered down as to be practically meaningless. While Prop. 90 has its drawbacks (it vaguely requires government to compensate property owners for “substantial” economic loses caused by new regulations and leaves open-ended such eminent domain justifications as “blight” and “obscenity”), it does have some teeth and would offer property owners throughout the state some real protection against governments’ most egregious eminent domain abuses.

Another provision, which some claim is more controversial than the main eminent domain element, would require state and local governments to compensate property owners when the government reduces the value of private property through more restrictive zoning or other regulations. Such “regulatory takings” are just as odious as other eminent domain abuses, however, since it matters little whether the government takes 100 percent of your property by invoking eminent domain or, say, 25 or 50 percent of its value by passing regulations. The principle is the same: government should, at the very least, be severely restricted in its ability to take private property, and should fully compensate property owners for their loss as a result of government action.

The Founding Fathers were right about the importance of private property in preserving and protecting liberty. John Adams argued, “Property must be secured, or liberty cannot exist.” George Washington asserted, “Private property and freedom are inseparable.” And James Madison wrote in Federalist No. 54 that “Government is instituted no less for the protection of the property, than of the persons, of individuals.” They meant protecting the property of all, not some more than others.

Adam B. Summers is a policy analyst at Reason Foundation. An archive of his work is here and Reason’s California research and commentary is here. This column was originally written for the Libertarian Perspective.