"The general rule at least is that while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking ...
the natural tendency of human nature is to extend the qualification more and
more until at last private property disappears."
-- Justice Oliver Wendell Holmes
Airline travel, phone service and home building, prior to the 1980s, were three
of the most regulated industries in the United States. Subsequently, airlines
and telephones were deregulated. Prices plummeted, service improved immeasurably
and choices were exponentially amplified. Airfares fell 40 percent over 20
years, adjusted for inflation. After telephone service was deregulated in 1984,
the average cost declined by 60 percent and long-distance calls that cost $2 per
minute in 1987 now cost only 4 cents. Wireless and cable, due to deregulation,
now compete for your telephone dollars. Housing, however, in cities like San
Diego became more regulated and increasingly less affordable.
When it comes to housing, government has taken the low road, piling layer upon
layer of onerous regulations to satisfy the desires not of homebuyers but of
politicians. San Diego's mayor and City Council, since the 1970s, backed by the
coercive power of government, have decreed that politicians would determine when
and where housing would be built. Consumers, through buying or abstaining from
buying from homebuilders (the free market) would no longer make those
determinations.
The result as predicted: home prices in San Diego from a price less than the
national median in 1973, skyrocketed to more than double the national median
today. Whereas homebuilders are driven by self-serving incentives to reduce the
cost of housing at every opportunity, government is driven by self-serving
incentives (public choice economics) to make housing as expensive as possible.
Additionally, politicians know that "all political power derives from what you
can do to or for someone," never more true than when applied to housing.
What triggered this change in housing to the "third way," as it is known is
Europe, something between capitalism and democratic socialism? What was the
genesis that has resulted in less and less affordable housing and increasingly
more traffic congestion?
In 1973 an extremely influential report by influential people, "The Use of
Land," was published, laying out a blueprint on how to circumvent the U.S.
Constitution, most particularly, the Fifth Amendment constraints on government.
It is noted on page 23: "Tough restrictions will have to be placed on the use of
privately owned land ... restrictions that landowners may fairly be required to
bear without payment by the government ... The interpretation of the 'takings'
clause is therefore crucial ..."
Page 175 notes: "A mere loss in land value will never be justification for
invalidating the regulation of land."
Reading this siren song, politicians, planners and judges, who have always
bristled at being bound by the chains of the U.S. Constitution, have
clandestinely, inch by inch, adopted the report's recommendations. The Supreme
Court in Kelo v. New London decided it is no longer humane to cut off a
dog's tail one inch at a time. After a series of decisions eroding those
property rights once protected by the Fifth Amendment, the high court
transmogrified -- abracadabra! -- public "use" to mean public "purpose."
Today, government can take anyone's property at any time, for any reason, just
so long as the new owner "promises" to pay the government higher property taxes.
A higher property tax is the new threshold for a "taking" to be justified as a
"public purpose."
With the wave of a wand, private property ownership is no longer in the public
interest, and is disappearing right before our very eyes. The court has said, in
effect, we no longer own our property but are simply tenants at the discretion
of the government. This is the meaning of Kelo v. New London.
The Endangered Species Act (ESA) was dreamt up to trump and circumvent the Fifth
Amendment and has always been about taking property without compensation -- not
honestly about protecting species. It takes a rare newspaper like the Orange
County Register or The Daily Transcript to inform the public of
what's at stake. Most reporters, from memory, can only recite four words from
the bill of rights (freedom of the press). They feel fair and balanced writing
about an opinion they oppose if it will fit on a bumper sticker.
Proposition 90 will close a lot of recently discovered loopholes and give people
a chance to reinstate the Fifth Amendment to the U.S. Constitution, at least in
California. If everyone fully understood the fine print, 99 percent of the
public would support Proposition 90. If the news media informed the public about
Agins, First English, Nollan, Dolan and Lucas (all Landmark
Supreme Court decisions), and the Delhi Sands Flower Loving Fly, there would be
no question as to why the backlash (against Kelo) is personified by
Proposition 90. Incidentally, it costs $414,000* to save each fly, according to
Congressional testimony. If you have an endangered snail, desert tortoise or
California gnatcatcher on your property, it can cost even more (and if you kill
one the EPA can fine you $50,000 for each and a year in jail). Most people know
that individuals, rather than government, are more trustworthy when it comes to
using their own property, and that individual liberty through property rights is
more important than slugs and turtles.
*
http://resourcescommittee.house.gov/archives/107cong/fullcomm/2002mar20/lilburn.htm
(Delhi Fly)
