THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume VII, Issue # 187, August 26, 2005
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
PROTECTING PRIVATE PROPERTY
IN THE WAKE OF KELO
By Jon Kyle
PRIVATE PROPERTY IN THE U.S.A.: THE PRIVATE PROPERTY RIGHTS OF AMERICANS UNDER THE FEDERAL & STATE
CONSTITUTIONS --THE NEED FOR CONGRESSIONAL LEGISLATION TO PROTECT PRIVATE PROPERTY RIGHTS AGAINST THE
PRACTICES OF PARTICULAR STATE & LOCAL GOVERNMENTS & AGAINST THE DANGEROUSLY EXPANSIVE INTERPRETATION OF
EMINENT DOMAIN UPHELD BY THE UNITED STATES SUPREME COURT IN THE CASE OF KELO V. CITY OF NEW LONDON
(2005) & READ BY THE COURT INTO U.S. CONSTITUTIONAL LAW
FULL STORY:
In the early Summer of 2005, the United States Supreme Court issued a ruling that local governments can use the constitutional
power of eminent domain to forcibly acquire private property, not just for roads and other traditional "public use" projects, but for
anything the government determines to be in the "public good."
The "public good," according to the ruling in Kelo v. City of New London, turns out to include shopping centers and other
economic development projects that increase a government's tax base. This approach has been used in the past to improve severely
blighted neighborhoods, with relatively little objection; but in Kelo, the Supreme Court ruled that the City of New London,
Connecticut, could condemn property in a decidedly unblighted working-class neighborhood so that private developers could build
condominiums, a luxury hotel, a health club, and private offices that would generate significantly higher tax revenues.
The Fifth Amendment to the United States Constitution forbids private property from being taken "for public use without just
compensation." Every state constitution echoes those words, which were surely given great consideration by the U.S. Contitution's
framers. As columnist George Will puts it, the framers "clearly intended the adjective 'public' to circumscribe government's power:
Government should take private property only to create things -- roads, bridges, parks, public buildings -- directly owned or
primarily used by the general public."
When the Kelo case was argued, Justice Antonin Scalia summarized New London's more expansive interpretation as follows:
"You can take from A and give to B, if B pays more taxes." A majority of his colleagues apparently agreed with New London's
interpretation.
Justice Sandra Day O'Connor joined with Scalia in opposition, writing that the fallout of the verdict "will not be random," and that the
beneficiaries are likely to be those "with disproportionate influence and power in the political process, including large corporations
and development firms" -- usually at the expense of individuals of more modest means. "The specter of condemnation hangs over all
property," O'Connor added. "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a
shopping mall, or any farm with a factory." The Wall Street Journal was even more succinct, calling the decision "A reverse
Robin Hood -- take from the poor, give to the rich."
"That prospect helps explain the unusual coalition supporting the property owners in the case," the Journal added:
"... ranging from the libertarian Institute for Justice (the lead lawyers) to the
NAACP, AARP and the late Martin Luther King's Southern Christian Leadership
Conference. The latter three groups signed an amicus brief arguing that eminent
domain has often been used against politically weak communities with high
concentrations of minorities and elderly. Justice Clarence Thomas's opinion cites
a wealth of data to that effect."
Of course, those whose properties are confiscated by their local governments retain a constitutional right to "just compensation,"
typically interpreted to mean market value. But that is a very elastic term. And it ignores the less tangible, but often more powerful,
impact of the loss of one's home and community. The properties to be seized in New London, for example, include small businesses
that have been in families for generations.
Even when the use of eminent domain is unavoidable, it is an awesome power that government should use cautiously and with
great restraint. That's why I have cosponsored the Protection of Homes, Small Businesses, and Private Property Act, legislation
that would prohibit the use of federal dollars in eminent domain projects pursued for economic development alone. I am also
researching other ways that Congress can act to better protect private property from state and local governments.
Arizona already has a state constitutional provision designed to prevent such abuse of eminent domain: Article 2, Section 17, of
the Arizona Constitution provides that "private property shall not be taken for private use," and the Arizona Court of Appeals
has interpreted this provision to mean that the ultimate use of "taken" property must be truly public -- schools, roads, and the like.
Other states are quickly following Arizona's example.
Meanwhile, the national government can also do its part by passing and enforcing our bill.
LINKS TO RELATED TOPICS:
U.S. Constitutional Law & Political Philosophy
Civil Liberties -- Private Property Rights
The Constitution of the United States of America
Jon Kyle is a Republican member of the U.S. Senate, elected from and representing the State of Arizona.
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Dr. Almon Leroy Way, Jr., Editor
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