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Rattling Chains -- A warning to America about where the Kelo decision will lead

Americans are dealing with a remarkable ruling to come from the Supreme Court of the Unites States. In a 5-4 decision, the court held in the Kelo case that local governments can seize private property against the will of the owner and then hand the property over to other private developers.

This move is an extension of the principle of eminent domain, in which the state can appropriate private property for public use, with fair compensation provided to the property owner. The notion is an attempt to balance the rights of the individual to enjoy their property without state interference against the need of the community to build such critical infrastructure as roads and airports.

That balance was disrupted when the court ruled that a local government in Connecticut seeking to increase the tax base could seize private property, with compensation, and hand it over to private interests. More tax revenue is now seen as a public good in the same way as a rail line.

Want to increase property tax revenues from commercial properties? Hand over that land (with a dozen homes on it) to the adjoining strip mall and after the bulldozers have done their work, a new clutch of hair salons, dollar stores, and coffee shops will open, with all that business activity adding to the public good.

Of course, the owner of the strip mall will be very grateful as well.

Justifiably, many segments of American chattering classes are in an uproar. They fear, as did the dissenting justices, that well-heeled business interests will prevail on local city and town councils to improve on the overall life of the community by handing land over to them, arguing that they can put it to better use. Many fear that less wealthy property owners will be disproportionately affected by appropriations that will avoid wealthier (and politically well-connected) neighbours.

Normally in a situation like this, Canadians wonder what such a decision in the US might mean to them. But in this case, Canada has already reached the logical endpoint of the path being embarked on by the US Supreme Court. This is because, in what comes as a surprise to many Canadians, we do not enjoy the right to private property at all. As early as 1960, the Bill of Rights (a statutory piece of legislation) allowed Canadians the right to enjoy their property, but gave them no fundamental right to use it. It gave them the right to expect due process of law when the government decided to appropriate the land, but it did not give them the right to expect compensation.

Two decades later, when the Charter of Rights and Freedoms was being written, the situation was not corrected. This was a deliberate decision made by Pierre Trudeau in 1982 to help bring the socialist New Democratic Party on board with his constitutional project. The provincial premiers were also wary of giving Canadians the constitutional right to property ownership that would interfere with their ability to define the use of land not owned by the state, or with their ability to appropriate the land outright.

Instead, we have a statutory framework that defines our ability to own property. Like any statutory privilege, it is a legal fiction that can disappear at the stroke of the pen wielded by the Governor-General. This is not a hypothetical argument. In 2003, a legal struggle that spanned thirteen years, two federal elections, and three governments (one Progressive Conservative and two Liberal), came to a close when the Supreme Court of Canada decided the Authorson case. In this legal landmark, disabled war veterans who were owed interest by the government lost that money. No one denied that the money belonged to them. Rather the government decided to pass a law to say that the debt to the veterans was unenforceable, essentially taking the money away from the veterans. Canada's Supreme Court ruled:

The prohibition, 'Thou shalt not steal,' has no legal force upon the sovereign body. And there would be no necessity for compensation to be given. In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine.

With that, those veterans and all Canadians had confirmed what the politicians already knew -- we own nothing. Oh, we still live in our homes and drive our cars, but only at the pleasure of the government.

Our freedoms are bound by a chain held by that government. Like Marley's Ghost, I am rattling that chain in an attempt to warn Americans that their Supreme Court has forged the first link of their chain, just as our Supreme Court forged the final link of ours. And for every home and family farm in the US confiscated by a local government empowered by the Kelo decision, compensation notwithstanding, another link is added.

But Americans are not Canadians, so maybe that warning is not needed. Where Canadians react with apathy and Euro-style musings of the price of social justice, Americans will react with anger. Where Canadians will shrug their shoulders with studied and well-practiced sophisticated weariness, and then return to paying their taxes to a government that owns everything else, Americans will mobilize and compel their government to pass a constitutional amendment. It's a good thing, too, because as the Canadian example shows, no matter how democratic a society is, no matter how committed it is to the ideals of personal freedom, a government will exercise whatever powers the people or courts give it, by design or by happenstance. Rarely, if ever, will such an exercise be to the benefit of the individual over what the government of the day perceives to be the collective good.

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Angry in the Great White North by Steve Janke is licensed under a Creative Commons Attribution-Share Alike 2.5 Canada License. Based on a work at
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