Tennessean Bob Krumm is proposing to amend the state constitution to protect private property owners against abuses sure to come as a result of the Supreme Court’s Kelo ruling. Bob’s proposed amendment is this:

No private property shall be taken by the State of Tennessee nor by any subordinate jurisdiction except for public use, and without just compensation.

No fee or admission shall be charged for general use of the grounds and facilities located on taken property, nor shall taxes be collected on such property.

At such time that the taken property is no longer in public use, its ownership shall revert to its previous private owners or their heirs without charge.

Bob continues his post with explanation and explication. Despite my severe disagreement and dismay with the High Court’s ruling, I think Bob’s proposal is actually too restrictive. For example, he says,

Here are some of the public uses that would be allowed under this amendment: parks, schools, libraries, and roads. Prohibited uses would be strip malls, office developments, stadiums, convention centers, golf courses, and toll roads.

Unfortunately, my draft amendment appears to disallow a college or a hospital, because they charge admission. It also prohibits the seizure of land for power and sewer lines since they would be operated by a private entity which presumably (though not necessarily) would be paying a fee to the government.

I don’t see a lot of difference between building a city-owned park and a city-owned golf course, even though the course would charge a greens fee and the park would be free to use. I also am unwilling to sign on to banning eminent domain to build power or sewer lines because (A) these utilities are already publicly regulated if not actually publicly owned and (B) economies of scale for efficient, effective service often may require that certain routes be used even if it means “domaining” private land.

Here is where I agree with Bob’s intent: the city or state should not be allowed to force a landowner to sell his/her land in order to turn the land or its use over to a for-profit business, with, as I said, public utilities being a possible exception. (Note that insurance and banking businesses are regulated, too, but they are not public-service businesses whose profit margin is regulated, as utilities’ margins are.) That means that the city or state should not ever act as the agent for transferring land ownership or its use from one private owner to another. As I said, I think an exception should be made (abeit rarely) for public utilities, but I ‘m not sure how to draft and amendment for that.

Bob also disallows a city to buy private property, own it for a time and then “flip” it to other private hands. Further, the government must permit “reversion clauses” in the title transfer, specifying that when the government vacates the land the title reverts to the sellers or their heirs or assigns.

That last part could be pretty sticky, as Bob implictly admit in linking to the problems foreseen with the possible closure of the Army’s Fort Monroe, Va. The post was recently named for closure by DOD’s Base Realignment and Closure Commission.

If Monroe stays on the closing list, one of the first hurdles to figuring out what happens next will be deciding who owns it.

That won’t be easy, predicts A. Paul Burton, Hampton’s city attorney.

The city hired a real estate lawyer to do some research just in case what happened Friday happened, he said.

He found out that the base comprises a number of properties, assembled from 1838 to about 1917. There’s even a two-acre splotch of land where a lighthouse for shipping traffic was acquired in 1798, during the administration of John Adams, the nation’s second president.

Several, but not all, key pieces of the land that are now combined and known as Fort Monroe had what lawyers call reversion clauses as part of their sale to the federal government, says Burton - the original sale laid down conditions for what happens if the Army stops using the land.

“It’s probably one of the most complex land title situations you’ve got around here,” Burton says.

Then there are potential issues with cleaning up the land in question or razing buildings erected there, et cetera. One compromise could be that the original owner, heirs or assigns must be given the right of first refusal at the original, unadjusted selling price; if they decline the land can lie fallow or be sold at market. However, admitting that I am not a real estate attorney, I won’t try to prescribe about that angle any further.

Bottom line, though, is this: The government should not have the authority to force the transfer of title of privately-owned land or its use to other private hands. I would include in a proposed amendment to the state constitution a clause specifically rejecting “higher tax base” as meeting the criteria of “public use.” There sits not a government anywhere, of any size, that doesn’t want more tax money. Now that the Supremes have written that collecting more taxes in and of itself meets the definition of public use, no one’s property - especially the poor and houses of worship - is safe from the government’s grasp.

Update: Okay, maybe I’ll need to oppose domanining property for golf courses, too.