The Supreme Court’s decision on Kelo v. City of New London erases the principle of private property from 200 years of American history. There can be no question that the founders intended private property to be secure from the arbitrary reach of government. The Constitution sets forth the legitimate purposes for which the government may own property (Article I, Section 8), and it stipulates the process by which private property must be acquired. Moreover, the Fifth Amendment requires that just compensation be paid when private property is taken for public use.
The key term here is “public use.”
Writing for the majority, Justice Stevens said, “… this court long ago rejected any literal requirement that condemned property be put into use for the … public.” Further, he said, “… this [New London development] plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment.”
There is a difference between “public use” and “public purpose.” Had the founders intended to grant government the power to take private property for a public purpose, they would have said so. But they didn’t. They said public use. The court – not the founders, not Congress, not any elected representatives of the people – changed the meaning of the Constitution. Government can now take private property for any purpose it describes as a “public purpose.”
The uproar this decision has caused will fade, and the court’s decision will become the law of the land – unless the people who are governed insist that their representatives limit the power of government, including the power of the Supreme Court.
Congress lost no time taking the first steps. Immediately, several representatives entered House Resolution 340, a strongly worded disagreement with the court’s opinion, which also acknowledges the authority of Congress to limit the court’s power through legislation.
Several property-rights organizations are working to craft model legislation for the federal government and for the several states to limit the power of eminent domain by defining the term “public use,” as it relates to the Fifth Amendment. This legislation will be a line in the sand, and every legislator and every candidate will have to decide on which side to stand. Sen. John Cornyn, R-Texas, has introduced S.1313, a bill that serves this purpose very well.
The Institute for Justice and the Castle Coalition are leading a national “Hands Off My Home” campaign to limit government’s eminent domain power.
Tom McClintock, candidate for lieutenant governor in California, is proposing a constitutional amendment for California. The amendment would require that the government must either own the property it seizes through eminent domain or guarantee the public the legal right to use the property.
The state of Utah has already outlawed the use of eminent domain by economic development districts. Ten other states have similar legislation on the books, with the exception for “blighted” areas. In Florida, “blighted” areas can include very expensive homes if that’s what the government wants.
What is needed is a clear statement in law of legitimate “public use” for which government may take private property. The Constitution says that legitimate public use includes “forts, magazines, arsenals, dock-yards and other needful buildings.”
In addition to a clear definition of “public use” written in law, the nation needs new Supreme Court Justices who read the Constitution and abide by what it says. President Bush may have the opportunity to appoint as many as three justices. Sandra Day O’Connor, 75, announced yesterday she is stepping down. Justice Rehnquist has cancer and is expected to resign any day. Justice Stevens is 85; he should resign immediately. Ginsberg is 72; Breyer is 67; Kennedy and Scalia are both 69, and Souter is 66. Clarence Thomas is the youngest, at 57.
New York Democrat, Charles Schumer, has already promised a battle royal if the president nominates a conservative judge to the Supreme Court. He, too, should read the Constitution. Schumer has demanded the president “consult” with the minority before sending a nomination for confirmation. Nothing in the Constitution gives the Senate authority to participate in the nomination of judges. The Senate’s power is limited to “advice and consent.”
To get justices who will uphold the Constitution, there must be senators who will confirm these nominations. People who want to protect private property rights need to know where their senators stand and elect senators who stand for those rights.
The next justices appointed to the Supreme Court will either continue this slide into unlimited government power, or they will begin to limit the power of government. The people can help determine which it will be by electing representatives to the House and Senate who demand limited government power and respect the sanctity of private property rights.