Three Inherent Empowerments of the Government - Term Paper Example

 Introduction The state or the government has allocated unto itself certain powers in order to be able to govern effectively. This is a part of the social contract in which people surrender some of their rights to the government in exchange for protection and maintenance of peace and order in society. The state has three inherent powers which are deemed as absolutely essential for it to carry out its aforementioned mandated duties; these powers are police power, taxation power, and the power of eminent domain. This paper discusses the power of eminent domain in the American state of Texas and the amendments that were adopted in relation thereof. Discussion The power of eminent domain refers to the power of the state to take private property for public use with payment of just compensation to the previous owner. This power is often exercised for purposes of public benefit, such as taking private lands for building roads, canals, bridges, schools, highways, and other public utilities or infrastructures such as airports and seaports. This power recognizes the superior dominion of a sovereign power or any of the duly-constituted government body to a piece of land within its territorial jurisdiction. From the phrase itself, eminent means it is readily apparent or obvious while domain is the territory subject to the control of any government hence the power of eminent domain is the inherent power of that government to exercise control over a particular area. This power is invoked whenever the government deems it proper to use private lands for public use to produce greater benefit for the greater number of people. Some states use another term for this power which is expropriation or appropriation or confiscation but all these mean the same. In earlier times, any sovereign ruler or government body was not mandated or required to pay the owner/s of private land; all the ruler had to do was declare such land as belonging to the state and to be used for public purposes without any need to compensate such seizures. This action was viewed as authoritarian and unjust by whoever owned private land that was unlucky enough to be considered for eventual public use and created resentment against the ruler who expropriated the said private land/s without payment. Legal experts believe it was sometime around 1730 that the concept of just compensation came into existence in order to avoid this situation that was considered as just a plain seizure without any justifiable cause whatsoever despite claim of the lands to be used for the greater benefit of the public. Legal realities conflicted with the politics of absolute property rights hence the modern concept of eminent domain came into being around the time of English feudal laws (Schultz 24) but eminent domain has one important difference with the power of taxation in that the exercise of the power of eminent domain requires consent from the private land owners. The power of eminent domain recognizes the state as having a “natural right” to control the lands over which it has jurisdiction for “higher purposes” or the said greater public benefit. The right is considered as inherent and does not require any explanation or specification. On the federal level, it is the Fifth Amendment of the United States Constitution which grants the government (at the federal, state, and local levels) to take private property for public welfare uses such as for safety and health reasons. This power is exercised for purposes of compulsory acquisition of private property through a legal process known as condemnation proceedings but the private owners are also entitled to due process of law and at the same time covered by the protections of the Fourteenth Amendment of the U.S. Constitution. Both of the amendments form part of the Bill of Rights; the Fifth requires just compensation in eminent domain expropriations while the Fourteenth provides due process and equal protection. However, as time went by, the original clause contained in the power of eminent domain granting the government and its subdivisions or instrumentalities to expropriate private lands or private properties had been amended as a concession to modernity. In some instances, this power has been delegated to a private person or to private corporations specifically authorized to exercise such power apparently or supposedly to promote commerce. There is logic in the grant of this power to some private individuals or corporations as long as they are authorized to exercise the functions of a public character in lieu of the government unit. This may happen if, as an example, a real estate developer has been given the authority to expropriate private lands and houses in a depressed area so the developer can turn it around by re-development. It can be seen as a win-win situation for both the government and the general public. There have been many cases of these so-called public-private partnerships in which the private individual or corporation had been granted the power of eminent domain to eliminate urban blight and re-develop that depressed area into a new shopping mall, high-rise residential condominium buildings, a tourist attraction, or a center of commerce, finance, and industry. It has been found cost effective in terms of limited government expenditures because a private individual or corporation given this power specifically for this purpose defrays the expenses using their own private funds and not taxpayer monies. This model is expedient as it reduces the chances of official corruption and helpful in recessionary times of reduced budgets. In fact, the Texas State Legislature had adopted this approach by making amendments to its state constitution regarding the power of eminent domain. In its Article 1, Section 17 Texas adopted and passed on November 03, 2009 specifically such an amendment granting a power of eminent domain to private entities but only upon a vote of concurrence by two-thirds of all the elected members of each house in the state legislature as a safeguard against any potential abuses of this special privilege granted under a specific law (Texas Legislature Online 1). There are four basic elements in eminent domain which are a private property, must be taken by the government, intended for public use, and with just compensation. While the new law allowing private entities to be given the power of eminent domain and with the safeguards put in place (requiring a two-thirds majority vote of each state house) do certain make sense in a financial or economic viewpoint, this can be viewed from an entirely different perspective altogether because in essence the government has abdicated its sworn duties to promote the general public welfare in favor of some private individuals or private corporations. This can make the situation of granting such special power of eminent domain prone to corruption as there will always be private entities who will try to muscle their way in state politics and gain an economic advantage to develop a prized property although it might be depressed presently. There are two elements that can make this special power potentially dangerous, which are the “to be taken” and the “just compensation” clauses which can be subjected to different interpretations. There are greedy developers and it is not inconceivable they will resort to all means to acquire pieces of real estate just to enhance their profits by using political connections to be given this special power at the expense of poor and hapless homeowners. There must be no liberal interpretation about this (Morris 356). The other controversial issue is that of “just compensation” and what really constitutes the meaning of the word “just” as there are various interpretations of this word. For some of the people, particularly homeowners, the word “just” pertains to distributive justice to be paid fairly and in full for their private properties but this is a sticking point because the value of a home (both the house and the land it sits on) does not refer merely to the zonal or taxation value of the private property but to its market value which according to some experts includes the equivalent financial value of the status of being a homeowner, as integral part of America (Malloy 136). There is a nice feeling to being a homeowner and this has a premium to it. Incidentally, Texas is the second most populous state in America and it has a lot of potential too in terms of being developed fully, since it is also the second largest state in terms of land area. However, according to the 2010 population census, a big majority of 32 million people of Mexican origin live Texas, California, Arizona, Colorado, and Illinois. While most of Mexican-Americans are fully integrated into American society, many of them continue to suffer ethnic prejudice and discrimination where they are living, in the American Southwest. But tensions persisted over matters of religious practices, economic opportunities, educational rivalries and other minor irritants. Texas was once a part of Mexico and when it was annexed, many former Mexicans were promised civil and property rights which U.S. courts failed to support and consequently, many of them lost property in court decisions (Library of Congress 2) and the amendment introduced into the Texas Constitution could repeat the violations. Besides the required two-thirds concurrence vote to delegate authority to private entities it may also be necessary to put additional safeguards to prevent Mexican-Americans of being again deprived of their properties by greedy unscrupulous real estate developers by requiring a prospective developer given the power of eminent domain to pay a certain twenty percent premium over agreed market values when paying the people affected in computing for the “just compensation” to be paid to those whose properties will be expropriated by the state. Conclusion While the amendment to allow for delegation to private entities the power of eminent domain is laudable, it has its risks and one of these risks is some poor people of Mexican descent in Texas can be driven out of their lands and properties under the guise of “a taking for a public use” by greedy developers to acquire choice properties at cheap prices. There was a precedent case on this matter decades ago when the Texas Urban Renewal Law was put in question by a petitioner when the trial de novo requirement was declared to be invalid. Works Cited Library of Congress. “Mexican American Migrations and Communities.” Teacher’s Guide Primary Source Set. 06 May 2013. Web. 05 Apr. 2014. . Malloy, Robin Paul. Private Property, Community Development, and Eminent Domain. Burlington, VT, USA: Ashgate Publishing Limited, 2008. Print. Morris, Eugene J. “The Quiet Legal Revolution: Eminent Domain and Urban Redevelopment.” American Bar Association Journal 52.4 (1966): 355-359. Print. Schultz, David Andrew. Property, Power, and American Democracy. Edison, NJ, USA: Transaction Publishers, 1992. Print. Texas Legislature Online. “The Texas Constitution: Article 1. Bill of Rights.” TLO. 2013. Web. 04 Apr. 2014. . Read More