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National NewsConservative News
Property Rights Still Threatened by Kelo Decision
By Gary Palmer
Posted on: June 19, 2006
It has been a year since the Kelo v. City of New London decision, the U.S. Supreme Court's controversial decision that granted an unprecedented expansion of the government's power of eminent domain.
For those that may have forgotten the details, in Kelo the Court undermined the Constitution's protection of private property by greatly expanding the meaning of "public use" as defined in the "takings clause" of the Fifth Amendment. The Fifth Amendment limits the power of government to take private property only for public use and with just compensation to the property owner.
For over two hundred years "public use" was understood to be limited to such "public use" projects as the construction of roads, bridges, schools and other public works. But the Kelo decision changed that. On June 23, 2005 the Supreme Court ruled that state and local governments can take homes and businesses provided that developing the property for other private uses is part of an economic development plan that will generate higher tax revenues.
Writing for the majority on Kelo, Justice John Paul Stevens, wrote, "The City [New London] has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community including-but by no means limited to-new jobs and increased tax revenue."
What this decision does is create an environment of uncertainty for anyone that owns property, whether it is a home, farm, or business that might be considered a prime location for retail or industrial development. All a city, county, or state official needs to do to justify taking property is to produce an estimate of the economic and tax revenue benefits that would result if the property were developed for other purposes.
Under this egregious abuse of the "takings clause," people are now at risk of losing their homes and businesses if they happen to be located in an area that the government thinks would be more profitable if taken over for other private uses. Churches and other organizations whose facilities and property are tax exempt could become prime targets as well for government officials eager to increase tax revenues.
In her dissenting opinion, Justice Sandra Day O'Connor wrote, "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing a Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with a factory." She added, "Any property may now be taken for the benefit of another private party." In other words, lower value houses could be replaced with higher value houses, smaller businesses could be replaced with bigger businesses, churches and non-profits could be replaced with shopping centers or anything else that would put more money in the government coffer.
Justice O'Connor was prophetic. According to the Institute for Justice, in the first two months after the decision, more than thirty municipalities began condemnation proceedings for private development or took action to authorize them in the near future.
Since the Kelo decision, a number of states and Congress have taken steps to strengthen property rights.
Alabama was the first of twelve states that have passed legislation to prohibit state and local governments from using eminent domain to take private property for economic development purposes. However, Alabama's new law created an exception that allows seizure of property that the state or local government considers "blighted." This is a loophole that many believe can easily be exploited, particularly by local governments motivated to designate property as "blighted" if the property is more valuable for economic development.
An attempt to correct this problem with an amendment to the Alabama Constitution passed the House but died in the Senate during the last legislative session.
At the federal level, last November the U.S. House of Representatives passed The Private Property Rights Protection Act of 2005 by an overwhelming vote of 376 - 38. Despite the fact that polling indicates that anywhere from 90 to 97 percent of the public are opposed to taking private property for development purposes, the bill remains stalled in the Senate.
It is also important to note that since the Kelo decision, two new justices have been seated on the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. Unfortunately, their presence does not change the vote on Kelo because they both replaced justices that voted against it. This makes the anticipated retirement of Justice John Paul Stevens in the next two years and the nomination and confirmation of his replacement of paramount importance because the justice that takes his place will be the swing vote on whether or not Kelo is overturned.
If public opinion polls are an accurate indication of what voters are thinking in regard to the federal judiciary undermining our property rights, this fall's elections, much like the two previous elections, may once again be a referendum on reigning in activist federal judges.
The Supreme Court, Constitution, and Common Sense, November 19, 2005.
Judicial Activism at Root of Supreme Court Fight, July 30, 2005.
Property Rights Latest Victim of Activist Judges, July 1, 2005.
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