8/05/2005

Eminent domain even has the legislature grouching about greed : The Tennessean, 7/31/05

The late Matt Lynch, the greatest labor leader Tennessee has ever produced, was a firm believer in the devil theory of politics.

Under this theory, a successful political theory, party or candidate must set up a position in opposition to evil and cry it from the rooftops. In other words, everyone needs a devil to campaign against. Democrats, for example, used the devil of Herbert Hoover for half a century; before that, it was William Jennings Bryan's Cross of Gold.

Tennessee's legislature, reeling under the escalating ethics scandals of the past two months and eager to change the subject, has found the perfect devil. It's a devil both the left and right can rail against.

It's called eminent domain, and it's been a part of our government since the very beginning. It's the process where government condemns land held by private citizens and uses it for something else, usually a public improvement.

The current incarnation of the devil began with a U. S. Supreme Court decision in June involving a development in Connecticut. The city of New London [CT] condemned several private homes for the construction of a hotel and other private developments, using as an excuse that it would increase the tax base.

The Supreme Court, divided 5-4, said that was OK. In essence the court upheld the status quo since it said states and cities can use eminent domain however they wish. Or not.

The Tennessee Constitution, in its statement of basic rights, declares that "no man's particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefore."

If lawyers weren't involved, that would seem to mean clearly that eminent domain can only be for "public use." And, to a point, there hasn't been widespread abuse in Tennessee.

But legislators already are rushing to file bills prohibiting condemnation for the purposes of private redevelopment or to expand the tax base, anticipating the January resumption of business. Some want to amend the perfectly good constitution.

Hatred of eminent domain, for whatever purpose, is deeply engrained in Tennessee's psyche.

Maybe it started with the TVA and its dam partner, the Corps of Engineers, in the 1930s and 1940s. The agencies condemned hundreds of bottomland farms to build lakes, uprooting the living and the dead (family cemeteries were dug up and relocated). It still rankles many communities.

In the following two decades, thousands more farms were taken for the interstate highway system.

We see it as a good thing today, but the state condemned and tore down dozens of homes (and a few houses of ill repute) to redevelop Capitol Hill in the 1950s. (Only cynics would argue that another house of ill repute has sprung up there in modern times).

In the 1960s, Vanderbilt University used Nashville's eminent domain to expand its campus south into pleasant neighborhoods, and the bitter taste lingers in some quarters.

Nashville probably wouldn't have had the East Bank renovation with The Coliseum, or the Gaylord Entertainment Center, without at least the possibility of condemnation. The new West Bank development with its ballpark is a different proposition; Metro already owns most of the land. And, obviously, private interests are making a profit there.

As difficult as it may be for some private property owners, few people would want to live today without Tennessee's lakes and interstate highways. Or, for that matter, Monroe Carell Jr. Children's Hospital at Vanderbilt University.

As usual, when the legislature rushes into things to curry public favor, it risks the law of unintended consequences. No one wants to condemn someone's farm to give Wal-Mart more space, but what about industrial parks? And, in a time of diminishing tax revenues, public-private developments (such as Nashville's new ballpark) are increasingly common.

There is a certain irony in all this.

The legislature got where it is by pandering for decades to business and the divine right to make a profit; that's what those 600 lobbyists hanging around are up to. This is a legislature that describes itself as "business friendly."

Now, among Democrats and Republicans, there is something that sounds very much like a populist outcry, with lawmakers wanting to defend homeowners and farmers against greedy big businesses that would rip off poor folks under the cloak of government.

Don't bet on that becoming a trend. But it could be refreshing while it lasts.


The Tennessean: www.eharmony.com