COLUMN -- Curbing abuse of legitimate authority

Wednesday, January 11, 2006


"Minnesotans from across the economic, ethnic and political spectrum support reforming the use of eminent domain," said Sen. Tom Bakk, DFL-Cook. Bakk and Jeff Johnson, R-Plymouth, are sponsoring legislation that significantly reforms government power to take private property for public use.

While the Bakk/Johnson legislation is about the abuse of eminent domain, it is also a much needed lesson in limiting government's arbitrary use of legitimate authority. Would legislators were as eager to confront abuses of government power that are less popular causes. As "economic development" has become justification for virtually any use of eminent domain, "public health" has become justification for inserting government into virtually any area of private life.

From total indoor smoking bans to recommendations for regulating and taxing fast foods to data collection and mental health tracking of school children, protecting "public health" is equally abused by the same disregard for individual rights as is eminent domain. Neutral criteria are as badly needed to curtail abuse of "public health" legislation as they are to eliminate abuse of eminent domain.

The Bakk/Johnson legislation serves well as a model for establishing neutral criteria for limiting government intervention, not just for eminent domain, but also for government abuse of property rights and individual choice under the guise of promoting "public health."

In principled terms, the Bakk/Johnson legislation defines when government may use a legitimate power. It defines terms so that authority cannot be arbitrarily applied. It provides rules for compensation to ensure that government, not those negatively affected by government action, bears the financial brunt of eminent domain on behalf of the community that benefits. That approach to limited government can and should be expanded to a discussion of public health.

The Bakk/Johnson legislation requires "clear and convincing evidence" that the use of eminent domain is "necessary for a public use and just compensation is paid or secured." Currently, there is no such legislative criteria defining when an individual health issue rises to a level necessitating government intervention. Without such criteria, virtually any issue of individual choice can be reduced to a "public health" issue just as virtually any individual piece of property can produce higher government revenue through "economic development."

For decades, Minnesotans stood by and watched municipalities expand the scope of eminent domain from a specific "public use" — a road, a park or a public building — to the collective notion of "public purpose," under which any individual's property could be taken merely for the economic gain of the community.

Today, we're following the same path in public health. The scope of public health has expanded from protecting individuals from risks to which they do not consent and from which they cannot protect themselves — dirty air, unsafe water, tainted food — to promoting the utopian vision of a smoke-free, fat-free, responsibility-free society that denies property rights and individual choice as surely as does abuse of eminent domain.

"We didn't condemn property, but everyone knew we had a big stick," said former Mayor Gail Dorfman, speaking about eminent domain use in St. Louis Park. Now a Hennepin County commissioner, Dorfman voted against a rollback of the county smoking ban, noting the county's responsibility to protect public health as her justification, ignoring the negative impact on individual businesses.

In both instances, Dorfman holds collective vision above property rights and individual choice. Unchecked, that worldview enables government to intrude on virtually any area of private life — out of desire, not necessarily legitimate need.

The Bakk/Johnson legislation provides checks on the arbitrary use of eminent domain. It does not deny government authority, but limits it to prevent its arbitrary and abusive use.

The legislation ensures that government bears the true economic costs of using eminent domain. No such checks are in place to protect individuals and businesses from arbitrary "public health" ordinances.

The diverse coalition supporting the Bakk/Johnson legislation did not evolve from concern for the constitutionality of eminent domain. It gathered and coalesced through the recognition by individuals that their properties were at risk. Perhaps the exercise of curbing abuse of eminent domain might raise awareness and open the eyes of legislators to the same risks inherent in substituting collective vision for necessary protection of public health — even if the causes are less popular.

Category: Column, Eminent Domain, Smoking Ban, Individual Liberty