“Every man has by nature the right to possess property as his own.”
Pope Leo XIII
So fundamental are property rights to our heritage that during the American Revolution liberty and property were thought to be indivisible. The concept that citizens were protected in their property rights was deemed so important that protections from governmental interference with private property were imbedded in the Fifth Amendment to the Constitution which guarantees that, “No person shall … be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.”
In 1795, the Supreme Court declared, “The Right of acquiring and possessing property, and having it protected, is one of the natural, inherent and unalienable rights of man.” Noted historian Edward J. Erler wrote that for the Founders of our republic, property was “the great fence to liberty.” Had it not been for such a hurdle, the federal government would now own, control and frequently mishandle all of the property of its citizens much as it has done with untold billions of taxpayer dollars.
During the first 125 years of our republic’s history, governmental bodies used judicious restraint in their exercise of eminent domain powers, although compensation disputes with displaced property owners were not uncommon. But, beginning in the early twentieth century, the doctrine of legal positivism replaced natural law, particularly with respect to property rights. This misguided school of collectivist thought asserted that the government’s limitation to use private property was “a pure question of policy” and no longer an issue of violation individual rights. In other words, if the right of the individual to acquire and possess property ceases to have a basis in nature, then it becomes a gift of the government … and what the government has the power to grant, it has the power to take away!
Particularly since the 1932, individual property rights have come under siege. On the one hand, we are faced with an onslaught from regulatory bureaucracies such as the EPA, OSHA and the Fish and Wildlife Service, who promulgate an endless and ever-changing anthology of rules and regulations affecting all Americans. Failure to comply with these edicts issued by faceless and unaccountable bureaucrats can result in fines, prison and the arbitrary abrogation of any number of fundamental rights.
Meanwhile, emboldened by a growing body of judicial case law, state and local governments have increasingly looked to their inherent powers of eminent domain to expropriate private property for the “public good.”
Eminent domain is the right of the state to temporarily or permanently exert its dominion over any parcel of land within the geographic boundaries of its jurisdiction. In peace time, this power has generally been limited to takings for such public purposes as building roads or schools. But, faced with newer challenges, such as those stemming rampant growth and pressures to provide an every increasing inventory or recreational facilities, local governments have prostituted the spirit and intent of the condemnation process and used their police powers to acquire the private property of individuals for such questionable purposes as providing “open space”, building more and more ball fields and even entering into commercial ventures, often at prices representing only a fraction of the land’s true market value.
A striking example of a municipality’s abuse and perversion of their power of eminent domain is the four year battle Lower Makefield Township (PA) has waged in its bid to acquire the 160 acre homestead farm of Chester Dalgewicz on which they plan to build a golf course. The township’s pretense is to preserve more open space, a concept which has great appeal with local voters who, like their peers in other nearby communities, have approved ballot initiatives to raise funds to acquire open spaces. But to use such ballot measures to validate the confiscation of private property for such purposes only reaffirms what Lord Acton describes as, “the one pervading evil of democracy … the tyranny of the majority.”
Then, rather than bidding on the open market for such property, and thereby paying “just compensation”, the Township’s supervisors have chosen a different path, one reminiscent of tactics so effectively employed by the fascists in Europe during the 1930s … offering far less than the property is worth and then using the judicial process to endorse their offer.
One is left to ponder whether the voter’s intent to preserve open space meant that it should be done at any cost, in this case, forcing Chester Dalgewicz and his family from their property! As an avid backpacker and hiker, I frequently seek out America’s open and wild spaces. But, preserving more lands as an end can not be justified by means which disenfranchises individuals of their natural rights.
It is an interesting and distressing phenomenon to witness Americans, who enjoy liberties most of the world’s population can only dream about, so casually cede precious freedoms when the perceived cost of doing so doesn’t appear to affect them. Why not let the police conduct a warrantless search of the car of a motorist as part of their war on drugs; since only the guilty have anything to hide? Why not let Township grab those big farms before the developers get their hands on them; albeit 90% of the communities population will never set foot on the newly appropriated open space?
They fail to learn from the history of people who have lost liberties, never to get them back. Tomorrow, it may be a different type of contraband the police are searching for or their own property, business or livelihood the government wants for some newly justified public purpose.
The citizens of Lower Makefield, Middletown, Coatsville, Tredyffrin and other communities throughout Pennsylvania, New Jersey and across the country should be storming the offices of their respective town supervisors demanding that they cease and desist all efforts to toss Chester Dalgewicz, Josef Stone, Dick Saha and their innocent counterparts unwillingly off their land.
