Protecting Property Rights, Post-Kelo
Taking the offensive...
[by Anthony P. Archie] 2/9/06

California’s property owners, incensed by the U.S. Supreme Court’s recent Kelo decision, are going on the offensive with a ballot initiative that aims to limit the government’s sweeping eminent domain powers. But powerful developers who benefit from the status quo are sure to put up a fight.

The California Property Owners Protection Act would eliminate the state and local governments’ ability to take personal property for non-public uses. Public uses would be strictly defined as the building of roads, parks, and public edifices. Non-public uses include the transferring of an individual’s land to another person or private entity.

The initiative, proposed by the Howard Jarvis Taxpayers Association and State Senator Tom McClintock, would counteract the U.S. Supreme Court’s unpopular decision in Kelo v. New London, Connecticut. The court permitted the city’s redevelopment agency to remove several homeowners from their property so that private developers can turn the site into a hotel and retail center. The 5-4 majority agreed that the city’s desire for more tax revenue was a sufficient enough reason for the seizure.

“Promoting economic development is a traditional and long accepted function of government,” wrote Justice John Paul Stevens for the majority. “Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties.”

This interpretation deviates from the original meaning of the “takings” clause in the U.S. Constitution. That clause, found in the Fifth Amendment, states that private property cannot be taken for public use without just compensation. The framers viewed the term “public use” to mean public goods exclusively. To take land from someone and give it to another person or group the framers rightly construed as theft. Samuel Chase, one of the first justices on the U.S. Supreme Court, echoed this sentiment in 1798.

“A law that takes property from A and gives it to B, it is against all reason and justice, for a people to entrust a legislature with such powers,” he wrote.

Twentieth-century rulings, unfortunately, redefined “public use” to include the redevelopment of “blighted” areas—swaths of land that are considered economically depressed. Cities saw eminent domain as a tool to reinvent themselves but too often use eminent domain as an instrument of plunder at the behest of politically connected companies.

California City in Kern County, for example, declared 15,000 acres of undeveloped land as a “blighted” area in order to turn the property over to the Hyundai car corporation. According to the Pacific Legal Foundation, between 1998 and 2003 there were 223 instances in California in which governments used eminent domain to take homes and businesses from individuals and families and transfer them to private developers. Such disregard for property rights is troubling. Justice Sandra Day O’Connor conveyed this fear in her Kelo dissent.

“The specter of condemnation hangs over all property," she said. "Nothing is to prevent the State from replacing a Motel 6 with a Ritz Carlton, any home with a shopping mall, any farm with a factory.”

With the Kelo decision, the U.S. Supreme Court damaged a fundamental building block of American life.

Fortunately, there was one bright note to the decision: it permitted individual states to place limits on the use of eminent domain. Alabama and Texas have already passed legislation forbiding the use of eminent domain for private development. The Golden State can join them, and restore America’s foundation of individual property rights, by adopting the California Property Owners Protection Act. The measure awaits title and summary from the Attorney General, and will soon be ready for signature collection. CRO

copyright 2006 Pacific Research Institute

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