THE KELO EFFECT PART 2: Eminent Domain in the Court of Public Opinion

"It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain." -- U.S. Senator John Cornyn (R-Texas)

A tsunami of public anger has swept the internet, the blogosphere, and the editorial pages of newspapers as countless citizens are waking up to the fact that their homes may be at risk.

It's all about the U.S. Supreme Court's decision last week in Kelo v. New London and Eminent Domain. It cuts across party lines and it shocks liberals and conservatives alike. More than any other contemporary issue, this one hits the mother lode: private property rights. The decision effects the rich, the middle class, and the poor. It reaches to the core of our beliefs in liberty, justice, and the American way of life. "As for the victims," Justice Sandra Day O'Connor said in her dissent, "the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

The hue and cry has been swift. Hours after the court's 5-4 ruling came down, the Houston Chronicle reported that Rep. Frank Corte Jr. (R-San Antonio) said he would seek "to defend the rights of property owners in Texas" by proposing a state constitutional amendment limiting local powers of eminent domain, or condemnation.

On Friday, the Palm Beach Post reported that Florida House Speaker Allan Bense expresed his concerns about the Supreme Court decision that broadened governments' rights to use eminent domain proceedings to take private property and created a committee to develop guidelines about when and where the proceedings can be used in the state. Meanwhile, in the state that brought us Kelo v. New London, Governor M. Jodi Rell said that the Connecticut government should consider the state's eminent domain laws, while seizing land for economic development. And Senator Rick Santorum of Pennsylvania spoke with Newswatch 16 about the high court's wrong decision: "That, to me, is really undermining people's fundamental rights to property," said Santorum. "And that's an important right in our Constitution."

On Saturday, the Jersey Journal reported that Assemblyman Louis Manzo, (D)Jersey City, New Jersey, has proposed a bill to limit the ability to seize properties. "We are trying to jump the gun and level the playing field for smaller business owners," Manzo said. We don't know exactly what the assemblyman has in mind, but it would seem to make sense to amend the Local Redevelopment Housing Law (LRHL)to add protection for home owners and small businesses.

On Sunday, the Macon Telegraph said: "Georgia needs to be among those states that protect individual property rights. Unfortunately, as evidenced by two bills in the 2005 Legislature, protecting property owners may not be as high on the legislative agenda as abandoning them. Senate Bill 5 would have allowed governments to use eminent domain powers for private purposes. House Bill 218 would have allowed development authorities all over the state to negotiate with industries in secret. Both bills were stymied last session, but it would not be surprising to see them pop up again in January, only under different titles, when the Legislature reconvenes. Instead of trying to cloak development in secrecy and grease the skids at the cost of individual property rights, the Legislature's first action should be to protect those rights."

Yesterday, United States Senator John Cornyn (R-Texas) rose to the challenge. In his floor statement to the senate he said:

This is an alarming decision. As the Houston Chronicle editorialized this past weekend: "It seems a bizarre anomaly. The government in China or Russia might take private property to hand over to wealthy developers to build shopping malls and office plazas, but it wouldn't happen in the United States. Yet, that is the practice the U.S. Supreme Court narrowly approved this week. Local governments, the court ruled, may seize private homes and businesses so that other private entities can develop the land into enterprises that generate higher taxes."

Cornyn has drafted S.1313 or the "Protection of Homes, Small Businesses, and Private Property Act of 2005."

The Act would apply this standard to two areas of government action which are clearly within Congress's authority to regulate: (1) all exercises of eminent domain power by the federal government, and (2) all exercises of eminent domain power by tate and local government through the use of federal funds. It would likewise be appropriate for states to take action to voluntarily limit their own power of eminent domain. As the Court in Kelo noted, "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

As the Macon Telegraph so wisely opined, until the Legislature acts, it might be useful to remember the words to the 1970 Joni Mitchell song, Big Yellow Taxi:

They paved paradise and put up a parkin' lot with a pink hotel, a boutique and a swingin' hot spot. Don't it always seem to go that you don't know what you got till it's gone?
Written By:Robin Muhr On June 28, 2005 11:14 PM

I didn't know I was renting. I bought a new property and now realize I own it until someone realizes they can make money on it and take it from me for the "greater good." At this point I'll cross any party line to get this revoked in my state. (Virginia)

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