Protecting private property in the wake of Kelo

Earlier this summer the U.S. 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 court ruled that the city of New London, CT 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 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 Constitution'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: "You can take from A and give to B if B pays more taxes." A majority of his colleagues apparently agreed with this argument.

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 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 provides that "private property shall not be taken for private use," and the Arizona Court of Appeals has interpreted that to mean that the ultimate use of "taken" property must be truly public - schools, roads, and the like. Other states are quickly following our example.

Meanwhile, the federal government can also do its part by passing our bill.