Last year, in its infamous Kelo decision, the Supreme Court ruled that a city government, using eminent domain, can seize private property, turn it over to another private developer, and reap the greater tax revenue the new owner could deliver. Howls rose up from coast to coast, from left to right.
The injustice was monumental and obvious. This was the final, un-American assault on the principle, much chiseled away, that “a man’s home is his castle.” Property rights advocates, recently accustomed to the federal bench firming up protections against such wanton takings, saw all the recent progress vanish. Poor and minority activists were likewise alarmed, their modest dwellings most at risk.
The left-leaning justices, oddly, were unmoved by the latter groups’ plight, letting their social engineering impulses overcome them. The best you could say about the court’s center-right justices was that they fairly begged the states to enact protections.
This past year, under pressure from energized constituents, several states have done just that. California’s own anti-Kelo effort made its way onto the ballot as Proposition 90. A popular measure in the spirit of 1979’s Proposition 13, which limited property taxes, Prop. 90 gives heart palpitations to the state’s political class.
Members of that class, along with the developers who run with them, actually describe the initiative as “Armageddon,” an imminent constitutional block against the kind of power they’ve come to exercise too easily. It’s hard to summon sympathy. Indeed, the prospect of Prop. 90’s passage gave us palpitations, too — the good kind.
We really do need an orderly, little Jeffersonian revolution every generation or so just to remind the government that the people are the ultimate sovereigns. If an initiative so fundamentally centered on our founding principles presents problems in public finance, then government officials can sort out the solutions. That’s why we pay them.
Alas, as we savored the post-balloting spectacle, we began to worry that the enthusiasts who drafted Prop. 90 got something wrong, even suicidal. It turns out the drafters didn’t stop at correcting an unjust practice in the state. They added language that would require government to pay property owners for any legal or regulatory change that caused them “substantial economic loss.”
That’s the poison pill Prop. 90 asks us to swallow. Champions of limited government and market economics distinguish between “property rights,” which must be protected, and “property values,” which always are at risk — risk being the price paid for freedom.
Imagine the government lifting a cumbersome regulation or zoning restriction. A good thing, that, but it also could lower some protected property’s value. Under Prop. 90, taxpayers would bail out a class of injured property owners. A taxpayer Armageddon, anyone?
Prop. 90’s authors — as we urge you to vote “no” — should come back with a better plan.
Part of The San Francisco Examiner's 2006 election coverage.