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LA property owners better off with amendment passages

The three constitutional amendments designed to define better the expropriation powers of Louisiana government, numbers 4, 5 and 6, have drawn criticism from various quarters. Nevertheless, with criticisms ranging from the thin to absurd, they deserve passage on Sep. 30.

Some of the critiques do have merit, if only in an improbable, hypothetical sense. Lawyer Paul Hurd has argued that the expropriation amendments create a Trojan horse situation that actually could increase government power in this area. Hurd envisions scenarios apocalyptic even by Louisiana hyper-politicized standards where an unseemly coalition of political elites could manipulate the process.

However, he probably misjudges the checks and balances involved. The judiciary would have to be corrupt all the way to the top (or wishes to engage in unfettered activism as in the Louisiana Supreme Court’s recent majority decision to ignore the Constitution regarding pardons and convicted felons running for office), but that’s no different from the present arrangement. And the public may well have its own say in these decisions, having to vote on bond issuances to fund these projects. That a justification that something fits an exempted prohibited category improves upon the current situation, where now basically this step is skipped because anything qualifies.

(Note also that the text of some of these amendments in large came from language provided by the Institute for Justice, a public interest law firm that has provided some outstanding work in the protection of liberty for many years; this group defended property owners in the Connecticut case that opened the floodgates for government usurpation of private property last year. A measure endorsed by this organization provides a lot reassurance that this measure will do what it is intended.)

This increased difficulty actually brings complaints from others. Despite its many exceptions, they claim it will impede government in sponsoring recovery from the hurricane disasters of 2005 and would cause “confusion.”

But this attitude belies a faith in government and a belief that government from the bench rather than by its majoritarian institutions is best. The exact problem caused by the current arrangement is that the power to decide whether any expropriation could occur rests in the hands of judges. These changes would limit the kinds of expropriation to occur – change brought about by the majoritarian branches and the people directly through their votes – so that the matter of expropriation becomes one defined mostly by the people where judges must justify exceptions, rather than putting the burden on opponents of expropriation to show any request without limitations would have deleterious effects.

It is much better to have the people remove most expropriation instances from consideration, limiting the scope of judicial activism on this matter, than to decline setting standards leaving it wide open for judicial mischief. This “confusion” objected to by opponents to the rest of the state is seen as vital safeguards ensuring liberty; purposes clearly qualifying as a genuine societal need will not be affected. What will be affected is the agenda of those who believe government should direct economic activity; now, one tool to do so will be removed from their collectivist arsenal.

While these amendments are not entirely perfect (for example, allowing expropriation for projects like convention centers which usually are a waste of taxpayer dollars: see this example), they do strengthen liberty in Louisiana, and therefore must be approved.

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