EDITORIAL >> Much ado about nothing
Not one but two legislative committees spent a couple of hours haggling over whether private property in Arkansas might ever be in peril of confiscation by private interests as a result of the U. S. Supreme Courtís decision this summer in Kelo v. New London, Conn., which said that if state and local governments permitted taking property for private purposes it did not violate the U.S. Constitution. That actually has been happening in some states where state constitutions or statutes permit it.
It looked like a great political issue. A few members of Congress rushed to the rescue and proposed federal legislation to take power away from states to regulate their eminent domain authority. In Arkansas, Asa Hutch-inson, the putative Republican nominee for governor, leaped on it and promised legislation to outlaw takings for private purposes if he is elected governor. Attorney General Mike Beebe, the Democrat, said he could see no reason for state legislation. Now, Republican state legislators, including Hutchinsonís nephew Jeremy, are pressing the issue so that their gubernatorial candidate is not left looking stupid or opportunistic.
One more time, class: The Arkansas Constitution bars government from taking property for private purposes. You just flat canít do it. If the legislature passes and the governor signs 500 laws banning condemnations for private purposes people will not be one whit safer than they are under the Constitutionís umbrella. The reason is that every statute passed by the legislature is vulnerable to the next one.
Developers could come to the next legislature and the next governor and persuade them of the great benefit of private takings, and the previous statutes against them would be useless.
Someone said that some future Arkansas Supreme Court might interpret the Constitutionís language to say the opposite of what it says. Which is more likely, the Supreme Court flouting the clear language and its own precedents or the Arkansas Legislature sneakily changing the law? (For clues, we refer you to the current brouhaha over legislative authors sneakily inserting language into a highway bond statute that would end the authority of people to vote on future highway debt for interstate work. We didnít know it was in there when we passed it last spring, some legislators were saying this week.)
As a matter of fact, the legislature did exactly what we are suggesting earlier this year. It passed a bill allowing cities to (unconstitutionally) condemn private property for the benefit of developers and Gov. Huckabee cheerfully signed it. The takings language was included in the tax-increment-financing law, which permits cities and counties to condemn property for commercial developments and to confiscate school taxes to pay for improvements to the commercial development. All the lawmakers who are wailing about the threat of private takings, including nephew Jeremy Hutchinson of Little Rock, voted for it.
Asa Hutchinson? Heís not sure how he feels about that.
They are all against private takings in theory, but not necessarily in practice. That is why the Constitution and not the whims of legislative lawmaking is the protection. Better let sleeping dogs lie.