December 10, 2002

By John D'Aloia, Jr.

sawsee@oct.net

"How can we give up a bit of freedom today" seems to be a game played out at all levels of society. It does not have to be so, but it will continued to be played unless citizens comprehend what is happening, stand up, and say, "Enough, enough!"

There is no better way to gain the knowledge needed than to study our country's history.

A recent issue of The Federalist presented the decision in the 1885 landmark New York Court of Appeals case known as The Tenement House Cigar Case as an example of how constitutional property rights principles were viewed and upheld in years past: "Liberty, in its broad sense, as understood in this country, means the right not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties, in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or to live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements, are infringements upon the fundamental rights of liberty, which are under constitutional protection."

One does not have to leave Kansas to find examples of the beliefs set forth in the Tenement House Cigar Case being nonexistent today in elected officials.

The city fathers in Merriam, Kansas, coveted a man's land because they wanted to hand it to a BMW dealer who would generate $460,000 more in sales tax revenue than was generated by the business already on the property, a used car dealership.

The land's owner had proposed using his land for a Mitsubishi dealership but the city refused to approve the use; the Mitsubishi dealership would not generate enough tax dollars to satisfy the city.

For the city fathers, greed equated to "public purpose."

The lure of more tax dollars to spend resulted in the owner losing his property and his retirement investment.

Freedom suffered a hit in Merriam.

Freedom was upheld in an eminent domain case in Illinois this year, indicating that perhaps the candle is not completely snuffed out.

A state-sanctioned development authority condemned land owned by a company so the land could be given to an auto race track next door for additional parking. (Sound familiar, Kansans?)

The race track company tried to buy the land, but the owner would not sell. The race track owners then turned to the development agency to grab the land.

The pretext was that the city would benefit from the business brought into the city on race days. For using its municipal powers to grab the land for the race track, the development authority demanded a fee of $56,500 -- and agency officials received free tickets to race events.

The Illinois Supreme Court upheld private property rights, striking down the development authority's land grab.

The court held: "While we do not deny that this expansion in revenue could potentially trickle down and bring corresponding revenue increases to the region, revenue expansion alone does not justify an improper and unacceptable expansion of the eminent domain power of the government. Using the power of the government for purely private purposes to allow [the race track] to avoid the open real estate market and expand its facilities in a more cost-effective manner, and thus maximizing corporate profits, is a misuse of the power entrusted by the public."

The court could also have said "Socialism is not allowed."

Judge Joseph Story, an Associate Justice on the U.S. Supreme Court from 1811-1845, provides from the pages of history another expression of the role of private property rights. In 1852 he wrote: "The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary. What is personal liberty, if it does not draw after it the right to enjoy the fruits of our own industry? What is political liberty, if it imparts only perpetual poverty to us and all our posterity? What is the privilege of a vote, if the majority of the hour may sweep away the earnings of our whole lives, to gratify the rapacity of the indolent, the cunning, or the profligate, who are borne into power upon the tide of a temporary popularity?"

See you Trackside.