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Red State Irony

Neill Herring has been a lobbyist at the Georgia General Assembly since 1980, working in support of public interest issues, primarily conservation and environmental protection.

The last four or five decades have seen extraordinary economic and population growth in the southern states of the United States, continuing historic developments that started during the Second World War and were later stimulated by the end of legal racial segregation. One national effect of those changes has been a continual shift in the center of economic growth for the whole country to the southern and western states, away from the Northeast and the Midwest “rust belt.”

The character of the exploitation of labor in the South has changed as investment patterns have displaced large populations from manufacturing and extractive employment. The continuing breakdown of the caste-like remnants of post-Reconstruction labor “markets” has removed hundreds of thousands of workers from home- and institution-based domestic service, as well as various manual occupations, and forced them into other employment. This new “New South” has been widely celebrated, even as regional wage rates still trail other sections of the country (and while the South shares the national upward redistribution of wealth). What is different now from the pattern in the 1950s is that realizing a return on investment by the sweating-it-out of workers is nothing like the obvious low-cost option it was then.

Marx says there are two sources of economic wealth: that produced by human labor; and the wealth that can be taken by that labor from the earth itself, from land, air, and water. As the rate of the exploitation of the former has continued to increase, exploitation of the latter has also risen, particularly in the South.

It is not inaccurate to say that dynamic examples of current “class struggle” in the United States have often been more evident in political disputes over natural resources than labor market or civil rights issues. Leaders in local “environmental” or “conservation” struggles are often drawn from those segments of the population—including minorities, students, women, and local community leaders—that contributed to leadership in similar labor and civil rights class struggles through the 1970s.

Why are environmental issues also class issues? The relationship of the working classes to the environmental means of production (and reproduction) is not casual, but metabolic; environmental impacts are widely distributed across the population. Each person’s access to a variety of natural resources for personal survival, to say nothing of their role in the support and enhancement of what we are now pleased to call “life–styles,” is essential to both reproduction of labor power, and to maintenance of the mass consumption of commodities on which current capitalism depends. Private ownership and/or control of natural resources through titles to property is widespread in the global economy.

Environmental Issues and Private-Property Rights

Assertions of landowners’ property rights were frequently invoked, in both the South and across the country, as environmental disputes arose as political issues in the 1970s through the ‘90s. Typically these rights were components in arguments against the protection of the threatened resource. This seemed perfectly natural; in a state like Georgia, the invocation of property rights has long been politically powerful, even incantatory, and the opponents of harmful environmental activities immediately recognized a political need to devise ways to confront or deflect these arguments.

In the 1990s, environmental lobbyists in the Georgia legislature—while engaged in disputes over landfills, medical waste and other incinerators, or meat factories (Confined Animal Feeding Operations)—began hearing about a new variation on the property rights theme: “regulatory takings.” This legal doctrine asserted that any property owner, who was deprived of any conceivable use of their property by any regulation, was entitled to compensation from the regulator to “recover” the purported “loss of value” that the deprivation entailed. The most notable example of this was a case where a South Carolina man was prohibited from building a house on a beach that would destroy a sand dune, and thereby endanger his neighbors’ property. (He finally lost in the U.S. Supreme Court, but not quickly.)

One volunteer environmental lobbyist, a tree farmer, had an idea of approaching a Forestry Association lobbyist about the regulatory takings issue. That lobbyist thought such a talk might be productive, and knew a Farm Bureau lobbyist who was also interested. Both were familiar with the “regulatory takings” idea, but concluded it was not of much immediate political interest to their clients. The forestry and farming industries in Georgia are politically entrenched, they tend to regard regulation by “captive” regulatory agencies more as protection than threat. But it turned out they were very interested in working with environmental lobbyists on a separate property rights matter: eminent domain, the state’s power to take property from a private owner for a “public purpose.”

Private Property Rights and State Power: Eminent Domain

The late Ogden Doremus, a colorful lawyer, longtime environmental advocate, and rural State Court judge, acted as an advisor. His knowledge of how the process worked proved very useful. He counseled us that, “If you have the power of eminent domain, you only need to know two things to take someone’s property: you need a legal description of the parcel you want, and you need to know where the courthouse is in the county where it is located. You go to the deed office with a legal description of the parcel and a letter declaring that you are taking it, and it is yours as soon as the paper is on the counter. The former owner has the right to contest the value offered before a jury, but the title is yours as soon as you take it.” That is what the Fifth Amendment to the U.S. Constitution has come to in Georgia: one is allowed to try to persuade a jury to increase the amount of money they can get from the government or the utility or the railroad when their land is taken.

Since the Second World War, fights over highway construction have been a lively area for Georgia’s popular politics. While concentrated in metro Atlanta, where about half of the state’s population lives and where half the perceived “need” for new roads is found, there are few corners of the state that have not experienced “road fights” involving an unwilling seller’s private property condemned for right-of-way. One Atlanta road was stopped when it was determined that the state could not use eminent domain to take public property. A new statute on that subject had to be enacted for construction to proceed; that process ultimately led to the road being dramatically reduced in scale.

Georgia’s Department of Transportation, for decades simply known as the “Highway Department,” is powerful by virtue of a Constitutional appropriation of all the motor fuel tax revenue collected by the state, but it is not politically popular. It is widely mistrusted as a tool of the road construction industry, and was deeply implicated in politically determined interstate highway route selections during the 1960s that rewarded favored landowners while pauperizing the less politically connected. Conservationists made a big step forward by allying with the forest-land owners and farmers against the “Asphalt Boys.” All parties agreed to oppose the abuse of eminent domain, and jointly turned to fighting a specific unpopular road project: the Metro Atlanta Outer Perimeter Highway. It was ultimately defeated, or at least postponed indefinitely; today it remains unbuilt.

The issue of eminent domain itself was more touchstone than cause during a period lasting more than a decade for this “Unholy Alliance” of Georgia foresters, farmers, and environmentalists. There was little chance to move any legislation on the subject during that time, but the idea was continually pushed, just as those with eminent domain power—state and local governments, railroads and utilities—continued to exercise and abuse it.

A break finally came in the late 1990s when a socially conservative Democratic member of the Georgia House (a peach and pecan farmer with an anti-utility, populist voting record), discovered that his land was contaminated by gasoline leaking from an interstate petroleum pipeline. He sued and won a handsome legal settlement, and sparked the first eminent domain reform legislation, a measure that required petroleum pipeline firms to meet higher standards than other agencies exercising condemnation power. In a legislative test of that reform several years later the legislature rejected a rollback. This is not a typical Georgia pattern; reforms are often gutted a few years after they are enacted, after some powerful interest needs the reform to go away.

The next legislative break on eminent domain came in 2004, during a legislative session when the Republicans were taking over the Georgia legislature (they took over the state Senate in 2003 and the House in 2005). One new Republican State Senator, an engineer, introduced a bill to promote development. It had a new and dangerous feature: it allowed developers to make deals in which local governments would be obligated to condemn the property of third parties on the developer’s behalf.

Opposing such a bill in the collegial and newly Republican Senate was futile, but the House Judiciary Committee offered a forum that would look more closely at the change the measure implied for property rights. This idea of “condemnation on demand” was not a high visibility issue, and there was no groundswell against it since the idea was not widely known. The opposition alliance’s “legislative inside baseball” strategy was to first get it assigned to the House Judiciary Committee then to focus arguments on “protecting private property rights”—something all legislators reflexively support.

If local elected officials were obligated to condemn property for a private entity’s development project, this would be an innovation that would make possession of property title purely a matter of political influence. But the bill failed in subcommittee, whose unanimous decision was apparently responsive to the united opposition’s argument: “It is not right for someone with political influence to be able to take someone else’s property thru the exercise of eminent domain so they can develop it. This bill amounts to giving influential parties the ability to select some parcel, say, ‘the widow Brown’s place,’ that might suit their purposes and avoid paying a fair market price for it.”

The bill returned the next session, with a new number, but by that time the politics of the matter had changed significantly due to the publicity surrounding the Kelo case, then pending in the U.S. Supreme Court. In Kelo the city of New London, Connecticut, had exercised eminent domain to seize an ordinary residential family neighborhood in order to turn it over to a private developer, justifying the taking with the claim that the new development would increase economic activity and yield higher tax revenues. When Atlanta right-wing radio host Neil Bortz was alerted to the same thing in the Georgia Senate bill, he went on the warpath against the use of eminent domain for economic development projects of the Kelo variety. Senators were subjected to a firestorm of outraged opponents’ telephone calls, letters, and emails. The Senate’s Republican leaders, all having cosponsored the bill, then ran from it, and quickly signed another bill from a freshman Senator that prohibited the use of eminent domain for economic development projects.

Kelo: Eminent Domain in the Mainstream

This narrower “condemnation on demand” issue was smothered in the wave of larger “eminent domain reform” that took place in many states following the Supreme Court’s Kelo decision. The rationale of that decision was unexceptionable in itself, affirming the power of the states, under the Fifth Amendment to the U.S. Constitution, to condemn property, largely leaving the question of what constituted “public use” or “public purpose” to the states. Georgia was one of many states which saw a wave of eminent domain reform bills and amendments to state Constitutions to limit the use of eminent domain for purposes of economic development.

(The particular history of the use of eminent domain in Georgia for economic development, or “redevelopment,” starts in a Georgia Supreme Court decision from the early 1950s which barred the use of condemnation to take slum property for the construction of public housing. Georgia’s Constitution was amended by the legislature and voters in the next general election to allow the use of eminent domain for abatement of “blight,” a term used to describe substandard housing that would be the subject for “slum clearance.” This was a key legal innovation that cleared the way for “Urban Renewal” projects that were presented as “progressive reforms,” but which were later jocularly, but accurately, called “Negro Removal” projects.)

The divisions over various positions on eminent domain reform taken among the many interests represented in the hallways and legislative chambers of the Georgia Capitol offered a fascinating study of how different interests, both corporate and small-holder, view the use of state power on the state level. Even as Georgia’s Republican leaders were denouncing the use of condemnation to promote economic development, and explicitly outlawing such use, they carefully wrote definitions of “economic development” into statute that left intact the power of both the state and public utility corporations to take over private property for an array of purposes, most of which can plainly be characterized as promoting economic development.

A struggle developed over a proposal, pushed by environmentalists, that would shift the burden of proof of the need for a parcel of property to the party seeking to take by eminent domain. The public utility lobby was able to get the bill out of the Georgia House with the existing burden of proof unchanged for the interests they represent: the person whose land was being taken had to prove that the utility did not need it. But for state agencies the bill shifted the burden. When the bill got to the Georgia Senate it was pointed out that it hardly seemed fair that the state should give private businesses—the utility companies—a powerful procedural advantage that it forbade itself. The bill passed with a consistent burden of proof on all condemners, but a meaningful court test of this change has yet to occur.

The Constitutional amendment supported by the Governor and the legislative leadership that repealed the previous language regarding “blight” was written so as to allow any future legislature to define “public use” any way it saw fit. A small group of legislators calling themselves the “property rights radicals” voted against the amendment. Realtors, the local and state Chambers of Commerce, the utility monopolies, and the agribusiness lobbies, all supposedly the strongest advocates for “private property rights,” meekly went along with the politically powerful and opposed the position of the “radicals.” Conservation lobbyists were free to oppose the flexible definitions favored by the Governor and his allies, and, in the dynamic of lobbying politics, were able opportunistically to assert themselves as the stronger advocates of property rights, reversing the historic relationship described in the beginning of this paper.

In what had politically evolved into a transportation reform strategy, the opposition alliance, having been fortuitously positioned on the condemnation issue years before, was equally adventitious in implementing a bit of the strategic thinking of Karl Rove. As George W. Bush’s political strategist, Rove enjoyed considerable electioneering success by hitting his candidate’s opponents in what appeared to be their strong points. For example, he caused the Vietnam “war hero” status of Senator John Kerry to be savaged by the “Swift Boat” campaign. Private property rights had been a barrier against conservation legislation and regulation; but its evolution into a tool for promoting just that regulation was underway.

The “Bundle of Rights”

This heightened attention to private property rights, at the point at which they can be taken away, exposes insights into the exact nature of those property rights. They are typically described to law students as a “bundle of rights.” Some properties can entail rights that other properties may not have, depending upon where they are located.

Perhaps the most direct statement of the basic nature of property rights in the United States came from General William Tecumseh Sherman, responding to complaints from Georgians regarding their property in his “March to the Sea” from Atlanta to Savannah: “You must first make a government before you can have property. There is no such thing as property without government.” However unwelcome this sentiment, especially coming from this source, might be among native white Georgians, the fact of it is unaltered. The “bundle of rights” is a product of the state and its power, and that “bundle” can be changed any time political power elects to alter it.

That fact, and its statutory expression in the form of eminent domain laws, means that the “bundle of rights” reposing in real property is finally reducible to the litigated money value of the property in question. There are few property rights that cannot be reduced to a dollar value by the political exercise of power and the observation of the form of “due process of law.”

In lobbying legislators in reference to property rights, and in public discussions, an effective rhetorical device is to use the term “property values” instead of “property rights,” since they can be shown to be effectively the same thing. An attack on the property value of a less well-off property owner by the actions of a wealthier neighboring owner is accurately characterized as the creation of “nuisance,” a specific, and ancient, component in the “bundle of rights.” Many common nuisances are forms of trespass, a civil offense that may also have a criminal component; invocations of police power are effective with lawmakers who regard themselves as “conservative.”

The class impact of these facts is both apparent and ideologically inconvenient in the “politically conservative” discourse that exalts “the sanctity of private property rights” alongside the “invisible hand” of the mythopoeic “free market” in its pantheon. The fact that those who possess more economic power than others are able to use their political power to diminish the property rights of those less powerful is a fact that increasingly needs to be concealed. The drawback of Kelo came from its wearing away at that façade.

What has made that façade so important in current U.S. capitalist consciousness, false or not, is the widespread distribution of real property in the U.S. population. Granted, this was the result of calculated state policy and was of enormous benefit to the FIRE (Finance, Insurance, and Real Estate) industrial grouping; but an effect of this widespread landownership has been to make common law property rights far more widely distributed over many different income levels than in any previous historic period.

Much of this property constitutes the majority of personal and family wealth of much of the 99 percent. While the influence of acquiring and possessing that property contributed to a reduction in class consciousness during the time it was being accumulated, within that same sentiment (ideology) may lie the seeds of a dynamic change in relations between this majority of ordinary property owners and the local communities where they reside, and more powerful elements of the U.S. capitalist political establishment.

Property Rights in Political Conflict

Yet another irony was exposed by the concentration of investment capital in ever fewer hands and the simultaneous collapse of the easy credit economy. The time of impact closely followed the declaration of a propaganda goal of the George W. Bush administration of creating an “ownership society.” That vision was to be the basis of a “Permanent Republican Majority” of small property owner-debtors whose property interests would compel them into political alliance with the truly wealthy, a class into which their own accumulating property holdings would presumably allow them entry, on some sunny day. The super-wealthy property owners are now cast into increasingly frequent conflict with their putative, might-have-been “ownership society” allies, in conflicts arising at the intersection of the two groups’ property rights. These contests are conducted using legal tools forged in a much earlier time, when today’s massive concentrations of wealth and investment power were not contemplated, but in which the smaller owners’ positions are often legally superior despite the disparities of wealth and power. Legislative advocates for the environment were able to take some advantage of this development in protecting some natural resources, and the private and public property abutting the sites of those resources. But this is hardly a basis for a broad organizing strategy.

Yet, one step past Kelo concerns are the interests of the new small-property owners whose entire equity has been wiped out in the ongoing collapse of real estate prices that followed the 2008 debacle. Working-class property owners, while conscious of themselves as “owners,” are also increasingly conscious of themselves primarily as debtors, and are finding their economic and political interests antagonistic to those of larger investors. This movement is not class-conscious, now, but it does not have to be conceded to the right populism of the “Tea Party” variety (or even worse). Just as the environmental movement, pursuing social goals, can make use of the contradiction between “property rights” ideology and the reality of ever more polarized wealth, other creative paths shall also emerge.

The most famous Georgian of the twentieth century, Dr. Martin Luther King, Jr., often quoted the lyrics of the hymn “Once to Every Man and Nation” (itself drawn from James Russell Lowell’s poem about slavery, “The Present Crisis”). In his speeches and sermons, King’s use of the lines, “New occasions teach new duties; time makes ancient good uncouth, They must upward still, and onward, who would keep abreast of Truth,” renders a religious and Romantic version of the dialectic of history. Dr. King would relish the use of common law property rights by his working class constituents in defense of their own economic rights—rights that the movement he led helped them acquire. The Resurrection City of the Poor People’s Campaign may be found anew in the growing black southern suburbs.

2012, Volume 63, Issue 11 (April)
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