Dedicated to the
Sovereignty of

Blight and the Powers of the State
(A contrasting of the Police Powers with the Eminent Domain Powers.)


One of the most distinctive features of the American system of governance is our commitment to two basic concepts: First, as the Declaration of Independence says, man's rights are “endowed by their Creator”, not the state, and second, that all governmental power is derived from the people themselves.

More than just feel-good sayings, these principles are codified in state constitutions, like Missouri's own. As a matter of fact, in the very first section after the Preamble's statement of “profound reverence for the Supreme Ruler of the Universe”, the Bill of Rights lays the foundation for the rest of the document:

That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole. (Art. I § 1)

The very next section of the Missouri Bill of Rights makes it clear that the “principle purpose” of government is to make sure these seminal principles are always honored.

The Evil of Concentrated Power
When Missouri drafted its constitution, it was just following the example of the original 13 states. As each of them formed their government, and as they established a federal union, they built hedges around these principles through the very structure of their governments. They recognized that the greatest threat to freedom was the concentration of power in too few hands; they spent countless hours researching and debating and the result was a social compact, or system of governance, which resulted in the greatest country the world has ever known.

Enumerated authority and Separation of power
The founding fathers were not satisfied with one or two checks on the concentration of power; they implemented a labyrinth of guards. Perhaps the foremost was making a civilian the Commander in Chief of the military. A clear distinction between military and civil powers is to always be maintained. Another guard is in the form of limited and enumerated federal powers, with all other power “reserved to the states respectively, or to the people”. These wise men knew that allowing too much power in the “general government” would be the death knell to their dream.

Checks and Balances
Separation of power between the states and general government was not the only impediment to the concentration of power. Our three branch system and bicameral legislature further distributes power and authority by creating a system of “checks and balances”. An administrator who can do nothing the legislature has not provided for by statute is much less likely to abuse the power “derived from the people”. A legislature that is subject to the veto of the administrator and judicial review by the court is, likewise, less likely to trample upon the people's rights. And, finally, a court subject to impeachment and trial by the people's direct representatives is more apt to exercise restraint.

The Four Powers of Government
The founding fathers did not think those deterrents to the concentration and abuse of power were enough, however. Our laws operate under four distinct powers of civil government which are to be used for four distinct purposes and have four distinct rules for their use – rules that are intended to “give security” to the people's “natural right to life, liberty, the pursuit of happiness”. As we will see, mixing up the powers, purposes and the rules is a terrible mistake, much like it would be a mistake to use the military, which is trained to kill people and break things, as a civil police force, which is designed to protect people.

The four civil powers are, 1) Taxation, 2) Police Powers, 3) Eminent Domain, and 4) Escheat.
All four of these powers are factors in the present debate over the proper use of eminent domain. We would do well to briefly examine each before we take a look at their proper role in this confusing issue.

We are all too familiar with the power of taxation - perhaps not a single American escapes its effects one way or another. Certain rules and principles, like “no taxation without representation”, are used to safeguard the people's interests where taxes are concerned. In Missouri, we require a vote of the people before instituting a new tax or raising an old one.

The police powers are often misunderstood. Misuse of them at times has created a wariness, but the police powers of the state are really designed to be the citizen's best friend. These powers, properly used, are what give security to those inalienable rights bestowed by our Creator. The police powers are designed to protect you from those who would perpetrate mischief against you, or from the neighbor who is so negligent with his rights that they infringe on yours. Many checks against the police powers, such as due process, habeas corpus, and trial by jury, are designed to keep the police power from usurping the people's power.

It is for good reason that eminent domain was historically referred to as “the despotic power”. At first blush it seems to go against every principle our country was founded upon, but the founders understood it to be one of the costs of establishing an ordered society and provided for it in the federal and state constitutions. The very concept of eminent domain was once a check in itself. When “public use” really meant “public use”, there was much less opportunity for mischief. The greatest challenge then was determining “just compensation”, for it is natural for a man to esteem his own property more than someone else will. Statutory guidelines, including the right to a jury determination of value are a check to ensure “just compensation” - if those procedures allow for free market considerations, that is.

Escheat is a less recognized term, but the principle is simple. It is merely the power the state has to claim unowned property, whether that property was abandoned or the owner dies with no heirs or assigns. The only “check” needed here is a determination that the property is truly unowned, since no one's rights will be infringed if there is no owner.

The Present Problem
With an understanding of the seminal principles outlined above, it is much easier to understand what's wrong with our present use of eminent domain, and, more importantly, what we can do to fix it.

The problem we are facing today is that of applying the wrong governmental power to the wrong societal problem. If we need to build a road, we should use eminent domain, for that is truly a “public use”. If, however, property is abandoned, we should not be using eminent domain – the power of escheat is the appropriate power to use. Statutes guarding the people's rights can be custom tailored for each type of power.

Arguably, the greatest abuse of eminent domain today is the conveying of that awesome power, formerly reserved to the people, into the hands of private entities – either directly or through the conveyance of title or lease after a government entity takes the property. This improper evolution of “the despotic power” is considered by many a necessary evil because our aging nation with its aging cities have to do something about “blight”. We must ask, though, “Is there another way?”.

No doubt, “blight” is a problem in some areas, and there needs to be a way to deal with it. The first thing we must do is ask, “What is the role of the state in dealing with blight?”. Its role is clear – it is to protect the rights of the neighbors of the blighted property!

But what is government actually doing? Too often, government, or some private entity it has bestowed with eminent domain powers, further injures the rights of the neighbors by designating whole areas “blighted”, and then taking the good properties along with the bad from unwilling owners! Other times nothing at all is done about blight because no developer has come along to take on the project. Either way, the neighbors are left victims of blight.

Eminent Domain Should Not Be Used to Deal With Blight
Instead of abusing their eminent domain powers, local governments should pursue their “principle purpose” of securing the rights of those neighbors by using the power that is designed to protect them – that power is the police power. That's the power that has been used to deal with this sort of problem for centuries in English common law and in our own country through the enforcement of nuisance laws. Can't these powers be abused, too? Of course they can, like any other power the government has, but it is a good start to at least use the right power to solve the right problem. Safeguards against abuse of nuisance laws can be tailored to those laws.

Blight and TIFs
It may be appropriate to give tax credits or abatements to property owners in “blighted” areas and there might even be a place for TIFs, if all participation is on a voluntary basis. In these cases, a more liberal definition of “blight” might be in order. By divorcing eminent domain and “blight”, the difficulty of establishing a definition that works for both TIFs and eminent domain vanishes.

The survival of our constitutional republic depends upon the separation of powers as well as checks and balances our forefathers so wisely based our system on. Any use of governmental power that in any way diminishes those principles should be brought back in check.

Missouri's property rights protection needs to be restored to the original intent by amending Article VI, Section 21 of the state constitution so that it provides free market based solutions to the problems of blight and substandard properties. The emphasis should be changed to safeguarding the rights of the neighbors of such properties through proper application of nuisance laws. Furthermore, the constitution should stipulate that eminent domain power should reside only in the hands of the government and that property taken by the government should not be conveyed into private hands.

Much consternation and hand wringing over this issue can be avoided if we will only apply these simple constitutional principles. We would do well to remember the words of James Madison, the father of the U.S. Constitution:

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own....

By: Ron Calzone
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