Posted By JerriCook on February 26, 2016
One of the most puzzling comments I saw on social media following the death of Supreme Court Justice Antonin Scalia came from a fellow alumni at Concord Law School. The poster offered decidedly less than heartfelt condolences for the legal giant’s passing, and then stated that the Court had eroded individual rights as a result of so-called conservative influence of some of the Justices. This puzzles me because anyone who has followed the Court for even a short time will concede that it is the justices with more liberal interpretations of the Constitution who have subjugated the rights of the individual to the rights of the State, and this is especially true where the individual is a landowner.
Most spinners on social media, including those with a legal background, point to the decision in Kelo v. New London as a fundamental blow to individual rights. 545 US 469 (2005). In a 5-4 decision, the Court found that the Takings Clause of the Fifth Amendment allowed the State to take private property from one person and sell it or even give it to a corporation if doing so would increase the State’s income through taxes. The math is simple. A corporation can produce much more taxable income than an individual. In short, the State’s right to financial security trumps the individual’s right to own property without fear of government seizure. But what if the State wants to make money through the taxes on land sales, but the people who own the land don’t want to sell? What would a liberal-leaning Supreme Court do then? There’s no need to speculate. It has already been decided. The State can force a private landowner to sell their property to someone else, at a price the State deems fair.
In the book 1984, George Orwell spun a cautionary tale about the creeping excesses of socialism, namely the heavy burden on individual liberty. Ironically enough, in year 1984, the Supreme Court offered a full-throated endorsement of socialism, holding that the State can take private property from an individual if officials deem the individual owns too much land. In a staggering 8-0 decision, the Court held that the State of Hawaii could confiscate land held in fee simple by a lessor and sell it for a much lower price to the lessee. Hawaii Housing Authority v. Midkiff, 467 US 229 (1984). The reasoning of the Court was that because 47% of the land in the State of Hawaii was owned by private parties who refused to sell, the State was losing revenue from land sale fees and taxes. The price of land that was available on the market was prohibitively high for most buyers, so the majority of residents leased land from the government or private property owners. The State decided that the owners of large tracts of land had too much power and money. Claiming that the landowners were in fact oligarchs, the Hawaiian legislature passed the Land Reform Act of 1967, and the seizures of land began. Much of the privately owned land that was seized had been passed down through generations of indigenous people, not purchased or “stolen” by Europeans.
In the years following Kelo, the public has generally thought of the use of eminent domain as a way for evil corporations to take the homes of everyday Americans. In reality, the implications of Kelo are nowhere near as far reaching as the decision in Hawaii Housing Authority, especially for farmers.
The poverty problem in America’s rural counties still persist. Unlike their urban and suburban counterparts, rural counties do not see the rate of sales for small parcels of land and private homes. Nor do mostly rural states and counties profit from land use taxes, as most agriculture use is either completely exempt from taxation or taxed at a much lower rate. In addition, farms are increasing in size as technology improves efficiency and productivity. The crop that once took a whole family laboring all day to harvest now takes a GPS-controlled combine piloted by one well-trained person only a few hours. Smaller farms are disappearing, not just because of evil corporations, but because of more efficient farming practices. However, farming, like the Court, has become a political issue, and there are some who want to see larger farms broken up, even if it means a drop in efficiency and food safety and a spike in food prices. These people have allies in Congress and the USDA.
It’s almost a certainty that in the near future we will see an attempt by a rural county or state to seize the land belonging to a farm that is deemed “too large.” Something as simple as an influx of back-to-the-land types willing to pay to have a few acres cut out of someone else’s property could be enough to jeopardize ownership rights of a private landowner. By seizing all or part of a large farm, a state or county could increase its tax base and generate revenue for local businesses. Don’t think it won’t or can’t happen. It already has.