Maggie's Farm

Kelo decision and the mortgage bailout mess and the silence of our masters

The Powerful vs. the People
By Steven Geoffrey Gieseler
Published 1/18/2008 12:08:10 AM


As the campaign for the presidency unfolds, candidates from both parties are squabbling over who can bail out defaulting homeowners first, and most. The mortgage crisis has become a central issue of the Democratic and Republican primaries. "Saving homes" is now a necessary mantra for everyone seeking the White House. Problem is, they're all trying to save the wrong homes.

In 2005, the Supreme Court issued its infamous Kelo opinion. That decision held that it was constitutional for governments to use the power of eminent domain to seize homes and turn them over to private parties who would, in theory, put the property to more economically productive use and thus increase the tax base.

Public outcry was swift and severe. Polls taken after the decision revealed public disapproval north of 90 percent. Citizens in at least 40 states pressured their governments to reform eminent domain laws in response. You'd figure that politicians in Washington would capitalize on this wave of public sentiment. But it hasn't happened.

Outside of a few token efforts for show and some blustery speeches aimed to placate the angry masses, President Bush and Congress have done nothing in response to the Kelo decision. Speaker Nancy Pelosi, the House minority leader when the Court issued the opinion, peculiarly brushed aside talk of Congressional action by claiming that the decision was "almost as if God has spoken."


THIS ABSTENTION HAS largely carried over to the presidential campaign. To their credit, all five of the major candidates for the GOP nomination at least have condemned the decision at some point since it came down. Former Senator Fred Thompson mentions property rights on the stump. Senator John McCain gave a well-publicized speech on the issue last August.

Still, no GOP contender has afforded eminent domain abuse anything approaching prominence in his platform. It is ignored in debates.

Even these meager efforts outdo the showing by those seeking the Democratic nod. The websites of Senators Hillary Clinton and Barack Obama, and former Senator John Edwards, lack any mention of protecting homeowners against government seizure for private use, even as homeowners potentially defaulting on loans take center stage on those sites. A web search and a review of recent news archives turns up no comments from these three candidates on eminent domain abuse.

This collective silence is baffling for two reasons. First, fighting eminent domain abuse is a politically winning issue for both parties. With the GOP candidates each trying to "out-conservative" the others, it's hard to figure why none would truly focus attention on an issue that finds something like 100 percent approval with the party's conservative base.

Likewise, studies have demonstrated that the Democrats' core constituencies -- poorer voters and racial minorities -- are the very people most typically affected by government's abuse of the eminent domain power. The "people versus the powerful" message that lies at the center of each Democrat's agenda could not find a better vehicle than this issue.

The silence is doubly odd when you consider that the battleground states that have decided the last two elections, Florida and Ohio, have been the sites of two of the most significant post-Kelo actions (an
overwhelmingly-approved constitutional amendment and a landmark state supreme court decision, respectively).


SECOND, WE COME back to the mortgage crisis. As stressful as losing a home to foreclosure may be, most such homeowners at a minimum share in the blame for their predicaments. After all, many agreed to loan terms that amounted to little more than gambles that, it turns out, haven't paid off.

In contrast, those who lose their homes to their federal, state, or local governments via eminent domain for private purposes are victims in the truest sense of the word. These people have done nothing wrong other than live on plots of land that more politically connected parties, and the politicians they're connected to, have decided the owners are no longer worthy of keeping.

And now, to add insult to injury, the people running for President are saying nothing about this travesty, other than that someday soon, these owners must suffer the added indignity of having to pay to bail out
those who have lost homes through their own doing by buying a house they now can't afford.

This is wrong, and the entire country knows it. Except, it seems, for the people trying to convince us to let them run the place.


Steven Geoffrey Gieseler is an attorney with the Pacific Legal Foundation, the nation's oldest and largest public interest legal organization dedicated to the protection of property rights. He can be reached via email at sgg@pacificlegal.org.