“A tremendous victory for property rights”—that’s how the Castle Coalition described voter approval of Initiative 31, which placed limitations on the power of eminent domain in Mississippi.  The November 8, 2011, results made Mississippi the 44th state to modify the power of eminent domain in response to the U.S. Supreme Court’s ruling in Kelo v. City of New London (2005).  With 88 percent of the states having curtailed the power of government to take property, it is tempting to conclude that the battle is over, and that property rights are once again secure.  Unfortunately, the real battle has not yet begun.

In Kelo, the Court upheld a local development plan in which several homes were taken so that a waterfront conference center and hotel could be built.  The homeowners asserted that their property was not being taken for a “public use” as required by the Fifth Amendment.  Instead, they argued, the local development corporation was simply handing the parcels to a private developer.  The planners countered that condemnation was constitutional because the new owner’s use of the property would increase jobs and tax revenues.  The Court agreed that such “public purposes” satisfied the public-use requirement, and thus the Takings Clause suffered no injury.

The backlash was fierce, and not from just conservatives.  Howard Dean and Bill Clinton denounced the decision.  Maxine Waters described the result in Kelo as “the most un-American thing that can be done.”  This outcry was astonishing in light of earlier rulings upholding other takings.  For example, in Berman v. Parker (1954), the Court upheld the transfer of land to private developers for urban renewal and the elimination of blight in the District of Columbia.  Hawaii Housing Authority v. Midkaff (1984) approved the transfer of large tracts of land from their owners to tenants to reduce the concentration of land ownership.  These decisions demonstrated that, so long as government could articulate some vague public benefit served by the condemnation, the confiscation would pass muster under the Takings Clause (“nor shall private property be taken for public use, without just compensation”).

But Kelo was different to most Americans because of the facts.  Wilhelmina Dery, one of the plaintiffs, had been born in her home in 1918 and lived there her entire life.  Susette Kelo’s house was her dream home with a waterfront view.  She had made extensive improvements and looked forward to a quiet life in New London.  Public sentiment said that taking property from these two ladies and giving it to a developer was wrong.  If a grandmotherly figure such as Mrs. Dery could lose her family home because a developer wanted a hotel, whose property was secure?

A healthy society would have taken this opportunity to reevaluate the basic premises of eminent domain.  The idea that the state has a claim on a subject’s or citizen’s property, at least in Anglo-American history, dates back to the Norman Conquest, when William rejected the custom of the Saxon kings that land was freely owned.  William claimed ownership of England and redistributed the land to Norman associates who became William’s tenants.  In exchange for the use of the Conqueror’s lands, the tenants owed him fighting men, arms, and horses.  Thus eminent domain is a relic of the Norman feudal system.  Although today the state must compensate the landowner and demonstrate some public purpose for the taking, the assumption remains that the state may seize the land of any citizen within its jurisdiction.

Our society, of course, is not healthy.  We are not interested in reexamining the development of property law or the basis of property holding.  This indolence leads to quick-fix remedies such as Mississippi’s Initiative 31.

This measure prevents state and local government from conveying confiscated property to another person or business for a period of ten years after acquisition.  The drafters obviously thought that, should the home of a Mississippi Wilhemina Dery catch the eye of a developer, the ten-year waiting period would provide deterrence.  Ten years is a long time for elected officials to wait for a project to begin generating jobs and tax revenue.  Moreover, most developers realize that such a long period could subject their best plans to economic downturns and other uncertainties.  Hence, this waiting period renders a condemnation more unlikely.

Is private property now safe in Mississippi?  Not if it falls under one of the multitude of exceptions found in Initiative 31.  The modest ten-year waiting period does not apply to:

drainage and levee facilities and usage, roads and bridges for public conveyance, flood control projects with a levee component, seawalls, dams, toll roads, public airports, public ports, public harbors, public wayports, common carriers or facilities for public utilities and other entities used in the generation, transmission, storage or distribution of telephone, telecommunication, gas carbon dioxide, electricity, water, sewer, natural gas, liquid hydrocarbons or other utility products.

There is an additional exception:

where the use of eminent domain (a) removes a public nuisance; (b) removes a structure that is beyond repair or unfit for human habitation or use; (c) is used to acquire abandoned property; or (d) eliminates a direct threat to public health or safety caused by the property in its current condition.

While it might be more difficult to transfer property to a developer to construct a conference center, local and state government still have free rein to take homes for other construction projects.  If a Keynesian government body in Mississippi wants to build a road to nowhere to create jobs, nothing stops it from taking the family homestead.   A clever developer might also craft arguments that certain property is a “nuisance,” unfit for habitation, or a risk to public health.  In 2002 and 2003, land grabbers were successful in getting government to declare New York City’s Times Square and areas in downtown Las Vegas “blighted.”  This high-dollar land was taken and used to build a new headquarters for the New York Times and parking lots for casinos, respectively.

Despite its weaknesses, Initiative 31 is one of the stronger post-Kelo reform measures.  Ten of the other 44 states that have recently reformed eminent-domain law allow takings if the property provides an obstacle to “sound growth” or constitutes an “economic or social liability.”  Undoubtedly, the New London developers could have argued that Kelo’s and Dery’s homes impinged on necessary growth or were economic liabilities.

Connecticut’s reform is one of the weaker proposals enacted.  It simply prohibits the taking of property “for the primary purpose of increasing local tax revenue.”  If tax revenue can be spun as a secondary or tertiary concern, the condemnation can go forward.  Under Connecticut’s new law, the New London homeowners would still be on the losing side of a condemnation action.

For true eminent-domain reform to occur, the final decisionmaking power on whether a taking is allowed must be transferred from local and state government actors to a body closer to the people.  The natural institution is the jury.  In early American history, juries were especially sacrosanct bodies and could not be overridden by a judge, even if the judge believed the jury’s decision was against the greater weight of the evidence.  Juries in pre-revolutionary America possessed virtually unlimited power to determine both law and fact.  Judges were often relegated to deciding pretrial motions and other ministerial matters.

In colonial Georgia, for example, the juries of the county superior courts decided issues of law and fact, turning to judges only when they desired advice.  Decisions of the superior courts could be appealed to special juries, not to a supreme court.  By placing such power in juries, the community could control the content of substantive law.  A legislature could pass a statute, and a judge could instruct on the common law, but juries possessed the power to veto both.  Juries were, and can be again, a body that interposes between the government and the people.

In the field of eminent domain, a jury could decide such critical matters as whether there exists an alternate piece of property, suitable for the governmental need, that is available for purchase; whether the proposed land acquisition is truly for public use (i.e., possession, occupation, and enjoyment by the general public or a legitimate public agency) rather than a “public purpose”; and the actual fair-market value of the property sought by the government.

Such a system could work smoothly.  If, for instance, a local government wanted to take a piece of property for a building project, the landowner challenging the condemnation of his property could request a jury trial.  The threshold issue for the jury would be whether the project is for a legitimate public use.  If the government clears this hurdle, the jury would then determine if another suitable property, with a willing seller, is available in the jurisdiction.  If no such property exists, only then would the jury permit the taking and determine the amount of money to be paid to the plaintiff for his property.

Litigation can be expensive, and these costs could deter some landowners from challenging the government’s demand for their property.  A fee-shifting provision, where the government would have to pay the attorney fees and costs of a prevailing landowner, would embolden property owners.  It would also make a local government think twice before exercising the power of eminent domain, if it knows that other suitable parcels are available for sale or that the cited “public use” is questionable.

Today, in some jurisdictions, juries do have a small role in condemnation actions.  In my home state of South Carolina, for example, there is no constitutional right to a jury trial in eminent-domain cases, but via statute the legislature allows a jury trial on the issue of compensation.  My proposal would restore the traditional power of the jury and permit it to decide all major issues in the action, not just the fair-market value.  The jury could interpose to protect the landowner on a variety of fronts.

While some of the post-Kelo reforms were helpful and provide greater protection for property owners, there has been no “tremendous victory,” as claimed by some.  Governments too often see citizens as tenants whose land may be taken for the flimsiest public purpose.  Real eminent-domain reform will only occur when Americans rethink the Norman roots of property holding and revive the jury’s power to interpose between the condemnor and condemnee.