Fox Business Approach in Opposition to Mortgage Acquisitions
In an article written by John Schepisi for Fox Business, the writer places reliance on the Constitutional mandate as support that eminent domain should not be used to invigorate the mortgage market.
This would likely be the wrong route. The right route is to have the State Constitution or State statutory framework prohibit the activity. Otherwise, if the statute allowing eminent domain of the mortgage is approved, the statutory delegation is there and the Constitutional framework in almost every State would allow such action.
The real issue is one of whether there is a statutory limitation to this recently thought out acquisition process.
Everyone can appreciate the fact that there is concern and a desire at all levels to fix this problem, but the use of the sovereign power of eminent domain is not the solution. All that will occur is the creation of more problems. The constitutional right to have and to hold property without the fear of the federal or state government taking it, except in very limited cases, must not be infringed upon. Our constitutional laws, both federal and state, along with eminent domain laws, have been written to guarantee this constitutional right.
In order to take property by eminent domain, the first consideration that must be made by a governmental entity is weighing and balancing of the individual property rights against the public good. The taking must be for a public purpose. That is why, historically, takings have always been used for infrastructure projects -- and that should not change. An infrastructure project benefits the public as a whole and when the governmental authorities balance the right of the property owner against the public good, the scales have to weigh in favor of the public good, provided the property owner is paid just and fair compensation.
