Life, liberty, and that other thing

A local recording studio is being confiscated by the city of Nashville to put it to a “higher valued use.” Apparently, the music emanating from Music Row in Music City sounds sweeter from a high-tax-rate high-rise than from an historic, independent label. Joy Ford was unwilling to sell her business of thirty years to the Lionstone Development Group, the Houston-based buyer of “underdeveloped real estate assets.” In response, City officials slipped under the covers with the developer to transfer the property from one private interest (its owner) to another—a Robin Hood in reverse.

I blame Karl Dean. I blame Phil Ryan. And yes, I blame (despite this being grounds for revocation of my UVA diploma) Thomas Jefferson. He should have foreseen the impact of his aspirational turning of the phrase. Sandra Day O’Connor did, but she was outvoted.

Let’s review…

A bit of history

John Locke’s tripartite statement of natural rights, life, liberty, and estate made its way into the first resolution of the Declaration of Colonial Rights, encoding the principles of a new nation. Thomas Jefferson, also borrowing heavily from John Locke, saw the phrase as insufficiently wishy-washy, penning “pursuit of happiness” in the place of property as the third pillar of natural rights. This was partly rectified by the fifth amendment which allows property to be ceased only for “public use.”

“Public use” becomes “whatever we want”

Since railroads prefer to run more or less straight, the taking of private property was originally construed as necessary for the establishment of public utilities. Soon, towns stumbled on a remarkable idea: if we “condemn” a building and hand it over to a developer who will build a more expensive building, doesn’t that raise our tax base? Isn’t a higher tax base in the public interest? Answer “yes” to both questions and you have found a way around the Fifth Amendment. Public use is whatever public officials want it to be.

The Supremes

This self-serving interpretation in the face of constitutional protections is ripe for a vehement smack-down by the Supreme Court Defenders of Liberty. Alas, no. In the 2005 Kelo decision, the five-person majority expanded government’s “takings” power even when (i) no blight is present, (ii) the transfer is from one private party to another, and (iii) the land use will not be open to the public. The government need only identify monetary or even “aesthetic” benefits.

In her dissenting opinion, Justice O’Connor wrote:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Intended, certainly not. But TJ’s transmutation of Locke’s key word suggests that they didn’t foresee it, either.

Justice Stevens, writing for the constitutionally-challenged majority (pun intended), explains that we need not worry as “legislative judgments” would carefully construe public use. Teach a man to fish…fine, but if you legalize tossing grenades into a fish-stocked pond, don’t expect a hungry man to exercise “judgment.” Perhaps Mr. Stevens should watch a Metro Council meeting.

Back to Music Row

And so Nashville’s Metropolitan Development and Housing Agency (MDHA) (ironic motto: “We value integrity”) has decided that Music Row needs more high rises, current property owners be (con)dæmned! The MDHA’s authority to act as it pleases stems from a ten-year old City Council ordinance that found Music Row circa 1995 “detrimental to the safety, health, morals, or welfare of the community.”

Several local bloggers have been following the story (since local purported journalist/advocate can’t get off the dime):

• Kay Brooks goes on location and finds that Joy Ford’s business is the only thing not blighted, with surrounding properties (already owned by the developer) looking a bit neglected.
• BlueCollarMuse provides adequate background in her two part series, and is not afraid to name names.
• We hear tones ranging from concern to outrage at eminent domain abuses from a local home inspector, real estate investor, professor of entrepreneurship, talk show host, and more. The action is opposed by at least one Metro Council member, State Representative, and local perennial candidate.

But none of those people run the MDHA, whose Director and Board of Commissioners play with a city-sized cookie jar of private-house treats.

Two years ago, MDHA Director Phil Ryan lamented that “public housing is not a priority” at the federal level. Nashville laments that private property is not a priority for Mr. Ryan.