PROTECTING PRIVATE PROPERTY
IN THE WAKE OF KELO
By Jon Kyle
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:
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.
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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