Property grab pushback: Prop. 90

NEXT MONTH, in 12 states, including California, voters will get a rare chance to talk back to the Supreme Court. Those are the states with measures on their ballots to protect property rights, sparked by the court's 2005 Kelo decision, which lets government condemn a person's property and give it to someone else who can make "better use" of it. In an instant, Americans across the country woke up to the realization that, as Justice Sandra Day O'Connor wrote in dissent, "The specter of condemnation hangs over all property."

To date, 30 states have enacted measures to restrain their power to condemn, and citizens have stepped in where legislatures have balked, placing initiatives on the ballots. Despite intense opposition from the powers who benefit from the status quo, these initiatives are doing well in the polls because they're tapping into a bedrock American principle: the right of everyone to own and enjoy property.

Occasionally, of course, government needs to take private property for roads, schools, military bases and the like, or to facilitate private undertakings that serve the entire public -- network industries such as railroads and electric and cable lines. That's why condemnations, through the power of eminent domain, are recognized by the 5th Amendment's "takings clause." Known in the 18th century as the "despotic power," eminent domain is nonetheless twice restrained: The property must be taken for "public use" and the owner must receive "just compensation."

Unfortunately, owners are often not made whole. More recently, however, as in the Kelo case, they've had their property taken not simply for a public use but for some "public benefit," with the court's blessing, and that's opened the floodgates to what should be unconstitutional condemnations. Whole neighborhoods have been bulldozed to make way for "upscale" private developments. Not surprisingly, the poor and politically unconnected have suffered most.

Another abuse is closely related and arguably worse. Rather than condemn the whole property and transfer it to others -- for which owners would have to be compensated, however poorly -- government condemns legitimate uses through regulation, paying the owner nothing for the loss in value he suffers. Thus, the public goods that result are provided on the cheap -- at no cost to taxpayers. Government denies owners the use of their property so the rest of us can enjoy lovely views, wildlife habitat and more. The public enjoys the goods, but the owner bears the costs.