Today Drudge linked to a story about eminent domain that’s worth looking into. The city of Hercules, California is nestled next to San Pablo Bay in the greater San Francisco Bay area. Money.com lists the median household income for Hercules at slightly over $80,000 with a median home price of almost $450,000. The Hercules city website gives its history as a company town, originally in the business of manufacturing gunpowder.

Enter Wal-Mart. I’ll pause to give liberals time to hiss.

As the San Francisco Chronicle reports, Wal-Mart bought 17 acres of land in Hercules and planned to place a typical big-box store on the property. Early this year, the city planners gave a thumbs-down to Wal-Mart’s plan because it didn’t fit well with their planned community. When Wal-Mart withdrew its plan, the city placed an offer for the land. Wal-Mart didn’t leap to accept the offer, so I wonder if the city tried to buy the property back for less than the amount Wal-Mart had given to purchase it.

Wal-Mart later proposed an altered plan:

Wal-Mart’s new proposal, which is still hotly opposed by some residents, calls for a general retail and grocery store, as well as a pedestrian plaza, two outdoor dining areas and other small shops and general merchandise stores, including a pharmacy.

Since Wal-Mart isn’t going quietly and the city planners aren’t getting their way, the city of Hercules is debating whether to use the power of eminent domain to take the property from Wal-Mart. Thanks, Supreme Court, for the 5-4 ruling of Kelo vs New London, giving towns the ability to seize property under some tortured definition of eminent domain. But in a perverse way, I really hope that Hercules goes ahead with the plan to take 17 acres away from Wal-Mart, for the simple reason that Wal-Mart has the deep pockets to fund a fight all the way to the Supreme Court.

And it’s about time that Kelo was overturned.

On July 4th, 1776, the Continental Congress declared that the political ties between the thirteen colonies and England were sundered. We look at July 4th as the birthday of our nation, but it took years of fighting to force Britain to recognize our separation and independence from them. Our Constitution was ratified in 1789, and our nation has been running under the Constitution for the two centuries since.

The Constitution is what gives the federal government power, and it was a radical change from the way governments had been previously set up. Before the writing of the Constitution, power was seen to flow from the ruler(s) to the people only as the rulers saw fit. But the Constitution recognizes that all power and authority resides with the people, and that we the people grant power and authority to the government to act in our name. Americans are citizens and the source of power in the U.S. Britons are subjects, and the crown and government rules them. That is a major difference.

We are sovereign and should not be subject to the government, other than in those narrow areas where we the people granted the government power. An American citizen cannot make a treaty with another nation; that is a power we granted the government, and you can read what authority to make laws we granted the Congress in Article 1, Section 8 of the Constitution. That section outlines those few areas where Congress may legislate. But it is in the nature of people and bureaucracies to take more power for themselves over time.

The members of Congress were told that they have power “To regulate Commerce … among the several States,” but this means that commerce within a state is not in their purview. But that limitation doesn’t matter to Congress — all they have to do is expand the definition of interstate commerce. If I use electricity in my business (and who doesn’t?), Congress feels it may legislate my small shop because the electricity could have come from a plant in another state.

Recently we saw that the Supreme Court declared that home-grown and home-consumed marijuana somehow counts as “interstate commerce” because the patients are not buying their weed from out-of-state growers. Using this same logic, I am affecting every other state’s economy by not buying items from them.

There is a joke among us geeks: “2 + 2 = 5, for very large values of 2.” And if you are free to define what 2 is, you can make this equation true. The Supreme Court has already done so with their definition of what constitutes “interstate commerce.” As a common plebe who isn’t as wise and educated in the nuances of the law, I understand interstate commerce to be the buying and selling of stuff (that’s the commerce part) that is done across state lines (that’s the interstate part). But my definition just isn’t sufficient for the nine Justices in black. A person can be taking part in interstate commerce if he is buying or selling something within a state, but which would affect someone else in another state. The camel’s nose of interstate commerce has allowed the entire camel, his family, the Congress, staffers, and parasitic hangers-on to enter the tent. It’s a bit crowded now, so the Supreme Court has tossed out some freedoms to make room. I hope you don’t mind, but it’s what happens when people change the definition of words.

And speaking of the Supreme Court, they hit the news again recently with a new ruling. The Fifth Amendment ends with “nor shall private property be taken for public use, without just compensation.”

This taking of private property for public use is called “eminent domain,” and it has been used in our nation’s history to get the land needed for highways and railroads. It has been used to take both public and private land from the state of Utah to create the Grand Staircase-Escalante National Monument. The need to take the land from the former land owners must be justified by the nebulous “public good.” Ordinarily this means making a public road that the majority of people will use. But in the case of the Grand Staircase-Escalante National Monument, the public good was paying back the environmental nuts who supported President Clinton, and permanently putting off limits the only known American deposits of low-sulfur coal. But I digress.

“Public use” means something. And it most certainly does not mean taking the property from one private person to give to another private person with the expectation that the government doing the taking will get more tax revenue after the transfer. But five Justices, specifically John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Anthony Kennedy, saw the redistribution of private property from one private person to another as a public good. The Ornithophobe does a grand job of summing up the decision this way:

Imagine it. Your home brings in say, $800.00 a year in taxes. That same property, commercially zoned, could be worth three times that in tax revenue, to say nothing of the economic impact of additional job revenue. THERE IS NOW NOTHING TO PREVENT THEM FROM SEIZING YOUR HOME, AND GIVING IT TO A BUSINESS/DEVELOPER/CORPORATION. That’s what this decision means. You no longer own your own home. You have it conditionally on the sufferance of your local government, and if they so choose, they can take it. For any reason, or no reason at all.

I have come to the realization that this one Supreme Court decision has destroyed private property ownership in the United States. Thanks to these five Justices, you no longer own the land you are living on — you are merely a steward holding the land until the government sees fit to take it from you. Sure, they are supposed to give you “just compensation” for the snatched land, but that’s not been true for many decades. It is common for a city to condemn the building, regardless of its condition or worth, before exercising eminent domain. This makes the building essentially worthless, so any evaluation of the property value is on the land only. My wife wondered if this Supreme Court ruling would have an effect on housing costs in this nation. After all, why buy a home when some local government could jump in and take it for some nebulous public good at any time?

The Constitution means something, and it isn’t as confusing as four men and a woman may think it is. Had this ruling come down in 1775, it would have been included in the list of objections against the British government as outlined in the Declaration of Independence. And it is possible that a hot-headed band like the Boston Tea Party could have visited their displeasure on anyone who would be willing to condone the taking of one man’s property to give to another.

But this happened in 2005, where we have grown ever more tolerant of government excesses. And while today is Independence Day, I fear that in too many ways we are far from free from tyrannical government.

If I were to walk up to you and take your wallet at gunpoint, that would be stealing. If I were to take your things with the mere threat of violence, that would be stealing. If I forced you to sell your $100 item to me for only $10, that would also be stealing. None of these examples of theft should be all that hard to identify, but the government doesn’t play by the same rules you and I do.

The right of eminent domain allows the government to take your property if there is a pressing public need for it. If the government is building a new highway, it can force the landowners along the route to sell, but it must pay fair market value for the land. This holds true for creating or expanding airports, public transportation networks, or any other valid public use. A strip of land near my home is owned by the city, and nothing can be built on it since the city needs full access to this land to work on the utility pipes that lie buried underneath it. The Fifth Amendment outlines the government’s power of eminent domain: “nor shall private property be taken for public use without just compensation.” But the government doesn’t always pay much attention to the Constitution.

In 1996, then-President Clinton staged a photo op in Arizona as he signed an executive order to establish the Grand Staircase-Escalante National Monument. He mouthed some words about the monument being necessary to protect the cryptobiotic crust and other buzzwords by the environmental left. Never mind that the EPA didn’t see any need for this land to be set off-limits by the government. So why did this land grab happen? I can see two reasons: first, grabbing this land allowed Clinton to boost his popularity with environmental leftists while simultaneously sticking it to Utah – the only state where President Clinton had finished third in the 1992 Presidential election. The second reason is more conspiratorial. At the last minute, the Kaiparowits Plateau was included as part of the Monument. There is nothing on the plateau that warrants its being added, but it effectively blocked a multi-year deal to extract the low-sulfur coal beneath that plateau. Kaiparowits is the only known U.S.-based location where this low-sulfur, low-polluting coal can be found. The only other known location is in Indonesia and is owned by the Lippo Group, run by the Riady family – the same family implicated in the Chinese money scandals during President Clinton’s terms in office. Ignoring the possibly conspiratorial nature of this land grab, however, the order by President Clinton effectively stole the land and its use from the state of Utah. The profits from the sale of coal would have funded Utah’s already drastically underfunded public schools.

“Stroke of the pen. Law of the land. Kinda cool,” said Clinton presidential aide Paul Begala. Not really. With a stroke of the pen, President Clinton stole the land from Utah.

The Environmental Protection Agency is also guilty of stealing from the American people. Rather than just taking the land outright, the EPA will simply deny landowners the full use of their land. People have been denied the use of their property because standing water is somewhere on the land, and the EPA swoops in and declares it a wetland. Once a piece of property is declared a wetland, the landowner is not allowed to drain the land or build anything there. Stroke of some bureaucrat’s pen, and the owner loses control of his land without “just compensation.” The farmers in the Klamath basin in Oregon have seen this theft in action. In 1906, President Teddy Roosevelt declared that the inhabitants of the Klamath basin would be guaranteed their water rights “forever,” but the promise of a President doesn’t matter as far as the EPA is concerned. EPA bureaucrats decided the needs of the endangered bottom-feeding suckerfish were more important than the rights of the Klamath farmers, so they descended on the Klamath basin and shut off the farmers’ water supply, diverting it to keep the rivers full and the suckerfish happy. But why does a river need to be kept running high when the “endangered” fish is a bottom-feeder? However, questions like this don’t matter when the greater good of protecting a fish is at stake. Do you imagine the EPA was in the least concerned about the endangered livelihood of the Klamath farmers? The EPA has shown itself over and over again to have far more interest in the welfare of a frog or a fish over a human being. Call me a species-ist, but I am more concerned with the welfare of my fellow humans over some bird, amphibian or insect.

North of Oregon is the beautiful state of Washington, where again we see governmental theft in action. King County is the largest county in Washington, incorporating the major metropolis of Seattle and more rural areas to the east of Lake Washington. King County Executive Ron Sims has proposed a new property plan, termed “65-10″ in some circles. Basically, the proposal would mandate that land owners in rural King County must leave 65% of their property untouched and undeveloped. 35% of the property could be cleared, but only 10% could be built on. If Executive Sims has his way, over half of the county’s rural acreage will be mandated by law to lie perpetually fallow. Do you think King County will compensate the owners for 65% of the total value of their land? Not bloody likely. This proposed governmental theft is being justified by the environmentalists living in urban Seattle because of the need to keep the watershed in place. It’s telling that these urban greenies are targeting only the areas where they do not live. Jill Boccla recently asked in a community forum, “Are you managing my property for me, or are you managing my land for you?” Of course King County sees the property as being its own to manage, rather than belonging to the people whose names are on the land titles, but this is pretty much the way bureaucrats always see private property. Last year California was ravaged by intense forest fires, fueled by fallen trees that had lain unharvested because the environmentalist bureaucrats felt it was better to let the forests lie untouched rather than cleaning out debris. When the fires came – and the fires always do come – the abundance of dry fuel ensured the fires would rage out of control for a long time. This King County plan would essentially do the same in Washington, since people would be kept from clearing fallen trees off their own property.

“Just compensation” would mean paying the King County landowners at least 65% of the value of their property, since the proposed law would effectively take away their rights of ownership. “Just compensation” would be paying the farmers in the Klamath basin for their lost livelihoods, or better yet, letting them keep their promised water. “Just compensation” would be paying the state of Utah for the billions of dollars it lost to the Grand Staircase-Escalante National Monument. But though it would be called stealing if it were done by private citizens, this is just another case of “government business.”