by Larry Wright, StopPATH WV member
There is much to be said about the PATH project; the focus of this opinion piece is the Constitutional, legal and moral basis for the PATH companies’ proposal. When considering any proposed government activity, or any "public/private partnership" such as PATH, the first thing one ought to ask is: “What function of government is this serving? Should the government be doing such things?” This leads to- “What are the legitimate functions of government?”
Thomas Jefferson laid this out for all of us in the Declaration of Independence, which reads in part- “That all men are….endowed by their Creator with certain Unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness, and that to secure these rights, Governments are instituted among Men.” This means that the first duty of government is to protect our natural rights, which are pre-existing and not dependent upon anybody else. The right to own, use and dispose of property is the most basic right on which all others depend. This being so, the government’s most important function, it’s ‘Prime Directive’ is to protect property rights. And that is indeed one of the things that our governments are supposed to do. But how does that work? What does the law say? Much of our current legal system derives from English law and tradition, but there are a few medieval concepts which would have been better left behind. One of these feudal vestiges is 'eminent domain', the power of the government to take private property without the consent of the owner.
There is much to be said about the PATH project; the focus of this opinion piece is the Constitutional, legal and moral basis for the PATH companies’ proposal. When considering any proposed government activity, or any "public/private partnership" such as PATH, the first thing one ought to ask is: “What function of government is this serving? Should the government be doing such things?” This leads to- “What are the legitimate functions of government?”
Thomas Jefferson laid this out for all of us in the Declaration of Independence, which reads in part- “That all men are….endowed by their Creator with certain Unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness, and that to secure these rights, Governments are instituted among Men.” This means that the first duty of government is to protect our natural rights, which are pre-existing and not dependent upon anybody else. The right to own, use and dispose of property is the most basic right on which all others depend. This being so, the government’s most important function, it’s ‘Prime Directive’ is to protect property rights. And that is indeed one of the things that our governments are supposed to do. But how does that work? What does the law say? Much of our current legal system derives from English law and tradition, but there are a few medieval concepts which would have been better left behind. One of these feudal vestiges is 'eminent domain', the power of the government to take private property without the consent of the owner.
During the Dark Ages, after the collapse of the Roman Republic, the ruler of an area claimed absolute dominion over all the lands he ruled, owning not only the land but the people living on it. In England, this regal authority became increasingly restricted, by the English aristocracy and later by the common people. As these privileges became more circumscribed, the King’s Parliament continued to seize the property of his subjects without their consent, sometimes paying them for the property taken, often not. This was known as pre-eminent domain, one of ‘The divine rights of Kings’, (since the King had more rights than the common people) and at the time of the American Revolution, the English government generally restricted it to ‘public works’ such as sewers and some roads.
However, Sir William Blackstone, one of the great legal authorities of the time, who is still cited in United States legal proceedings, said this- "So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modeled by the municipal law." - Commentaries on the Laws of England, 1765.
While the Constitution was being debated, one of the issues was this feudal concept of eminent domain, and whether such a medieval holdover ought to be recognized. In 1765, Blackstone had suggested that eminent domain powers could be abused to favor those in power. Some of the Founders, aware of the various abuses of private property rights occurring not only before the Revolution, but between 1775 and 1791, citing Blackstone’s support of the absolute right to property, argued that all vestiges of feudal law that struck at the absolute right of a property owner should be eliminated. Both the Pennsylvania and Virginia Constitutions of 1776 guaranteed the absolute rights of property owners. However, these concerns about including medieval laws were ultimately brushed aside, and eminent domain was implicitly recognized as one of the powers allowed to the Federal authority, through the Fifth Amendment, although James Madison included language intended to strictly limit the eminent domain power. The Fifth Amendment states that private property may only be taken for public use, and that ‘just compensation’ for every such taking must be paid to the owner.
And here is where PATH comes in. Historically, in these united States, eminent domain, however debatable this medieval idea may be, was largely been used only for public uses such as public roads, bridges, and public works such as fortifications, water supplies or sewage treatment facilities. Since 1954, some States have allowed private property to be seized for private use, just as Blackstone and some of the Founders predicted would occur. In response to these seizures, which are in direct opposition to the stated intent of those who wrote the Constitution, a number of other States, including West Virginia, have enacted legislation specifically prohibiting use of the State’s power of eminent domain for private use or profit.
Despite this, the PATH companies propose to take a 226 mile long strip of West Virginian’s property, using the State’s power of eminent domain to take property from unwilling owners, to build a private power transmission line to send power to a substation in Maryland. Although presently PATH is not yet authorized to force the loss of property, that is what PATH is about. PATH is not attempting to negotiate a fair price for their proposed right of way; they are asking for the power to use eminent domain to take private property from the current owners. The current actions of the PATH companies with respect to surveying and acquisition are in preparation for and in anticipation of their expected ability to use eminent domain to force the landowners to allow the PATH to proceed.
And how will the public benefit? The power transmitted on this line will not benefit West Virginians, unless they are AEP or Allegheny Energy stockholders. Not only are the PATH companies not a recognized public utility, PATH is emphatically NOT a ‘public use’ within the historical context, and anyone who says so is either stupid, corrupt or insane. Such outrageous abuse of the eminent domain laws is not just unethical, morally wrong, and unConstitutional, it’s a violation of West Virginia statute and the intent of West Virginia’s legislature. PATH is a perversion of the idea of individual sovereignty, of the rule of law, and by any rational standard, an absolutely unwarranted invasion of our right to property. Using medieval law from the Dark Ages to strip the property rights of thousands of West Virginians so that two power companies can make a windfall profit is simply, absolutely, utterly, unalterably wrong.
It’s evil, and evil will come of it. This is 2010, not 1060. We are not serfs, but citizens. We have rights, none of which are for sale, and all of which we will continue to exercise. The purpose of Government is to protect those rights, and those we employ to protect our rights had better not walk down the PATH of evil. "King Joe" and his minions would do well to remember the last time a "king" tried to abuse Americans.
However, Sir William Blackstone, one of the great legal authorities of the time, who is still cited in United States legal proceedings, said this- "So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modeled by the municipal law." - Commentaries on the Laws of England, 1765.
While the Constitution was being debated, one of the issues was this feudal concept of eminent domain, and whether such a medieval holdover ought to be recognized. In 1765, Blackstone had suggested that eminent domain powers could be abused to favor those in power. Some of the Founders, aware of the various abuses of private property rights occurring not only before the Revolution, but between 1775 and 1791, citing Blackstone’s support of the absolute right to property, argued that all vestiges of feudal law that struck at the absolute right of a property owner should be eliminated. Both the Pennsylvania and Virginia Constitutions of 1776 guaranteed the absolute rights of property owners. However, these concerns about including medieval laws were ultimately brushed aside, and eminent domain was implicitly recognized as one of the powers allowed to the Federal authority, through the Fifth Amendment, although James Madison included language intended to strictly limit the eminent domain power. The Fifth Amendment states that private property may only be taken for public use, and that ‘just compensation’ for every such taking must be paid to the owner.
And here is where PATH comes in. Historically, in these united States, eminent domain, however debatable this medieval idea may be, was largely been used only for public uses such as public roads, bridges, and public works such as fortifications, water supplies or sewage treatment facilities. Since 1954, some States have allowed private property to be seized for private use, just as Blackstone and some of the Founders predicted would occur. In response to these seizures, which are in direct opposition to the stated intent of those who wrote the Constitution, a number of other States, including West Virginia, have enacted legislation specifically prohibiting use of the State’s power of eminent domain for private use or profit.
Despite this, the PATH companies propose to take a 226 mile long strip of West Virginian’s property, using the State’s power of eminent domain to take property from unwilling owners, to build a private power transmission line to send power to a substation in Maryland. Although presently PATH is not yet authorized to force the loss of property, that is what PATH is about. PATH is not attempting to negotiate a fair price for their proposed right of way; they are asking for the power to use eminent domain to take private property from the current owners. The current actions of the PATH companies with respect to surveying and acquisition are in preparation for and in anticipation of their expected ability to use eminent domain to force the landowners to allow the PATH to proceed.
And how will the public benefit? The power transmitted on this line will not benefit West Virginians, unless they are AEP or Allegheny Energy stockholders. Not only are the PATH companies not a recognized public utility, PATH is emphatically NOT a ‘public use’ within the historical context, and anyone who says so is either stupid, corrupt or insane. Such outrageous abuse of the eminent domain laws is not just unethical, morally wrong, and unConstitutional, it’s a violation of West Virginia statute and the intent of West Virginia’s legislature. PATH is a perversion of the idea of individual sovereignty, of the rule of law, and by any rational standard, an absolutely unwarranted invasion of our right to property. Using medieval law from the Dark Ages to strip the property rights of thousands of West Virginians so that two power companies can make a windfall profit is simply, absolutely, utterly, unalterably wrong.
It’s evil, and evil will come of it. This is 2010, not 1060. We are not serfs, but citizens. We have rights, none of which are for sale, and all of which we will continue to exercise. The purpose of Government is to protect those rights, and those we employ to protect our rights had better not walk down the PATH of evil. "King Joe" and his minions would do well to remember the last time a "king" tried to abuse Americans.
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