by J.D. Tuccille
June 23, 2005

Property decision may put politicians at risk

The Supreme Court has ruled that Americans are entitled to keep their homes and businesses only if local politicians have no well-connected friends who covet the land. The Constitution may say that private property can be taken only for "public use," but such use, says the court, includes expensive projects by developers who promise buckets of tax revenue. According to the court's majority in the pivotal case of Kelo v. New London, homeowners and small business people who want some consideration for their property rights can ask politicians to please refrain from seizing land and handing it to their cronies.

While Justice John Paul Stevens and his colleagues apparently envision Americans approaching politicians hat-in-hand to beg for a bit of mercy, history -- and recent events in Washington state -- suggests that angry constituents may choose less-submissive tactics for lobbying their legislators.

In March, in King County, Washington, dozens of rural landowners dumped a load of noxious weeds on the doorstep of County Executive Ron Sims. Infuriated by controversial new land-use restrictions that have weeds sprouting where business and home-expansion dreams once grew, protesters launched a symbolic attack on the home of one of the law's prominent boosters.

Mild though they were, the King County landowners' actions received significant media coverage. People are accustomed to hearing about angry picketers, court actions and public debate, but they rarely see their neighbors dump trash on a despised government official's lawn. Americans generally believe they have recourse when government gets out of hand; administrative appeals processes and the courts offer at least the illusion that oppressive actions can be deterred and injustices made right.

But when people are denied any reasonable hope of appealing outrageous government actions, they often take matters into their own hands.

In the 1790s, farmers on the western frontier protested a stiff excise tax on whiskey by tarring and feathering tax collectors and taking up arms. Short on political power and denied easy access to the courts, farmers turned to outright revolt. Most history books call the Whiskey Rebellion a failure, but the tax was repealed just a few face-saving years later.

Thomas Wilson Dorr launched a little-known uprising against the government of Rhode Island in 1841. Frustrated by years of failed efforts to revise an archaic state charter that restricted voting rights to a select few, Dorr led efforts to implement a new constitution by referendum. The state government dug in its heels and fighting broke out. Dorr's supporters lost the battle, but they won a new constitution expanding suffrage the following year.

As recently as 1946, returning World War II veterans chased a brutal political machine from McMinn County, Tennessee, at gunpoint after state and federal authorities ignored years of complaints about fixed elections. Veterans took matters into their own hands, laying siege to the county jail after the corrupt sheriff seized ballot boxes and took refuge behind his own bars. The machine lost both the battle and the election.

While their struggle was thankfully free of bullets, tar or feathers, property owners in King County were, like the whiskey rebels, Dorrites and war veterans, denied any legal means of protecting their rights. They were backed into a corner when a judge denied the use of the referendum process to overturn a requirement that rural property owners set aside as much as two-thirds of their land as nature preserve. With few alternatives, property owners understandably turned to a barely veiled "we know where you live" threat against a powerful official.

The King County incident may not be the end of the matter as far as property rights are concerned. In Kelo, the Supreme Court has concluded the decades-long incremental abolition of the Fifth Amendment's protections for private property. As Justice Sandra Day O'Connor wrote in her dissent, "the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

In divorcing themselves from the founders and their clear words, Justice John Paul Stevens and his colleagues probably intended to make life easier for politicians who want a free hand to seize private property. Instead, if history is any guide, the justices may have made life more difficult for those officials.

Denied any hope of legal protection for their property, Americans are likely to turn again, as they have in the past, to extra-legal tactics for punishing errant officials. A bushel of noxious weeds in King County, Washington, may be the opening shot in a property rights war that has more in common with the messy struggles of the past than it does with the bloodless debates to which Supreme Court justices are accustomed.


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