Solving Kelo - Seeking Parameters for a Solution

I've decided to go back and explain my thoughts with which I arrived at my post Fixing Kelo - a proposal



Assuming that after you read this post and that one you do not agree that my my proposal works (and I'd email it to my congresscritters except that both senators and my elected representative are Certified Moonbats™), then at that point we can start the debate on what problems a solution can and should solve, and which ones we're stuck with. At that point designing a solution becomes much less a matter for ego. I'm afraid that nothing I've seen out there on the web approaches the problem of Kelo from a politically viable starting point.



When you're in my current profession, you can't help but learn that public condemnation of private property for private use has a long and not entirely dishonorable history in this country. Yes, it goes back to 19th centruy crony deals of the sort Tammany Hall was famous for, but it has also been used to condemn farmer's land for factories near cities where poor to middle class workers could get to them, clear blighted areas, and many other uses. It is sometimes necessary to avoid many times the cost, both to the beneficiaries and to society at large.



The clear and obvious problem with condemnation is that it is involuntary. Not much can be done about that. It's one of those "by definition" things. But we can keep it in mind. On the other hand, most development by its very nature also requires ownership of a complete footprint, and designing around one or a few who are unwilling to sell at any price is usually prohibitive. In other words, if 499 out of 500 people in an area are willing to sell and the 500th is not, the 500th is imposing his will on the other 499, and the entity that is in the minds of that 499 their benefactor, to no less degree than the landholders in Kelo were imposed upon. The way to keep involuntary nature foremost is to make certain that the victim of eminent domain can come out no worse by objective measure than when the process started, and should be handsomely compensated for the involuntary nature of the condemnation, instead of being paid fifty to seventy-five cents on the dollar.



The first problem we can design around is that usually, the person fighting condemnation doesn't have the resources such that it gets to the Supreme Court, or realizes they don't have the resources to fight at all and it doesn't get anywhere. Doesn't matter how strongly the law is on your side if you don't have the resources to feed a lawyer the equal of your opponents lawyer, in order to fight the fight. We need to design a fix to the usual David sans sling versus Goliath nature of these things.



The second problem we can design around is that the person whose property is involved doesn't get correctly compensated. Actually, I'm not worried about them being overcompensated, only undercompensated. They don't have the resources or savvy for a correct evaluation, or they don't realize how important this is soon enough. This person needs to come out of the fight with a true replacement for the condemned property or the clear resources to purchase one.



The third problem we can to design around is whether this taking is the minimal interference in the rights of a property holder, and figuratively speaking, whether the game is worth the carrot at all. I believe that intentionally and expressly overcompensating the victims of condemnation, and requiring this come out of the beneficiary's pocket, is the necessary and sufficient condition for this. If the land is not worth more than actual value to the intended beneficiary by a goodly factor, it should not be involuntarily condemned, no matter who the beneficiary.



The fourth problem that we can design around is that having one's property condemned necessarily causes a great deal of work, inconvenience, and frustration on behalf of the owner. They deserve to be compensated for this.



The fifth problem we need to design around is a moral one of the society around them. We need to be able to say that if someone's property did need to be taken from them involuntarily, they at least came out better for the experience and those not involved should be able to say, "You know, it's a shame they took the ancestral property. But they came out of it pretty well. That wouldn't be so bad if that happened to me." This is largely going to be a factor of how much overcompensation the victim of condemnation is due, and coming up with a process for computing it.



The sixth problem we need to design around is that a constitutional amendment is difficult, and takes years during which more problem condemnations are going to happen, even assuming 2/3 majority can be had in house, senate, and 3/4 of the legislatures. I do not support a constitutional convention; I believe the probability we'll come out with something equal to or better than the current document to be negligible. A public law can be enacted in hours to days, at which point we can work on following up with a constitutional amendment if still necessary.



I've been looking for over a week now, and I have arrived at no further requirements that have not been touched upon. Please respond with further input.