On Thursday, the state House of Representatives passed an important bill. House Bill 3 would put before voters a proposed amendment to the North Carolina constitution establishing that the government cannot take private property through eminent domain except for a public use, and with just compensation.Additionally, the bill makes key statutory changes that narrow the scope of eminent domain from a taking for the “public use or benefit” to merely the “public use.” The removal of “benefit” is an attempt to ensure that eminent domain is used only for public roads, schools, utilities and the like, not economic development boondoggles.These are good and necessary changes and popular: the bill passed the House 104-9. The amendment is necessary because North Carolina’s property protections are not as straightforward as they ought to be.The North Carolina constitution states that a citizen cannot be “deprived of his life, liberty, or property” except “by the law of the land.” Not a word about compensation, or any limits on why the state can take away your property. In other words, all it takes is one bad bill on Jones Street to force Granny off her homestead to make way for a shopping mall, nature center, etc. That’s a loophole big enough to build a greenway through.Consider the recent state Supreme Court decision Kirby v. NCDOT, which struck down parts of the Map Act. Because there is no explicit constitutional protection, the unanimous opinion while perfectly reasoned had to pull from sources as varied as John Locke, James Madison, and state Supreme Court decisions to establish that compensation is required.Cheers to the General Assembly for making the protection of property rights a priority, but there may be something else going on as well.Recall those key statutory changes discussed above? By adding those into the bill, the legislature opened it up for a veto by Gov. Roy Cooper. Normally, a constitutional amendment proposal does not go to the governor, it becomes law after passing the General Assembly. But since H.B. 3 also makes statutory changes, Cooper’s veto pen will be in play.Was that a mistake, or did lawmakers lay a trap for the governor?Cooper has proven no friend to private property rights. As attorney general, he defended the Map Act all the way to the Supreme Court. And remember, under the “Cooper Rule,” the attorney general was very clear that he defended only laws he personally thought were constitutional. (See H.B. 2, Voter ID, etc.) But it’s worse than that: when he was a member of the legislature, Cooper voted for the Map Act. Thus, he not only thought it constitutional, but good policy as well.If H.B. 3 passes the Senate, Cooper will be forced to make a choice: veto a popular, bipartisan measure that puts citizens’ rights ahead of the government’s needs; or sign a bill that exposes him to charges of flip-flopping on property rights issues. Cooper will almost certainly choose the latter option, but it may be the that General Assembly Republicans are toying with him a little along the way.
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