The Liberty Papers

“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is no force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist.”– John Adams

Monday is third anniversary of the Supreme Court’s ruling Kelo v. New London. The reason I am writing about this today is because it will likely be overshadowed by the decision in the District of Columbia v. Heller case, which involves the Second Amendment. A case which is equally important to any individual who values Liberty.

Here is some background on Kelo v. New London, in case you are unfamiliar with it. The City of New London, Connecticut sought to redevelop the Fort Trumbull neighborhood in hopes of increasing the city’s tax base (“economic development”). Several property owners refused to sell to the city, including Susette Kelo, and condemnation proceedings were started by New London Development Corporation, a private body acting on behalf of the city. Ms. Kelo received her condemnation notice the day before Thanksgiving in 2000.

On June 23, 2005, the Supreme Court dealt another blow to the Bill of Rights. The majority (opinion written by Stevens, joined by Breyer, Ginsburg and Souter with Kennedy writing a concurring opinion) ruled that taking private property for economic development and to increase the tax base is a “public use.” This ruling gave local government nearly unlimited power to take private property though eminent domain and give it to a developer to increase the tax base of the city. The court considers this to be a perfectly reasonable example of the “public use” clause of the Fifth Amendment.

Justice Clarence Thomas wrote in dissent, “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”

Contrary to what John McCain’s recent comments on Boumediene v. Bush, Kelo has paved the way for local governments essentially steal land at an unprecedented rate. The Institute for Justice noted just one year after the Kelo decision was announced “more than 5,700 properties nationwide [had] been threatened by or taken with eminent domain for private development.” Compare that to around 10,000 instances of Kelo-style takings from 1998 to 2002.

Kelo is not the first case dealing with property rights to come before the Supreme Court. Property rights had been protected until the Progressive Era. In 1954, the court ruled in Berman v. Parker that displaced 5,012 people, nearly all were African-Americans, from their homes in a DC neighborhood.

In court’s decision, Justice William Douglas deferred power to Congress and the District of Columbia (judicial deference) and expanded the purposes where eminent domain could be used:

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.

By the way, this is the same court that issued the Brown v. Board of Education decision. Something that certainly cannot be disputed is how use of eminent domain impacts the poor and minorities.

Then in 1984 the Supreme Court ruled in Hawaii Housing Authority v. Midkiff that a Hawaii law, the Land Reform Act of 1967, was an acceptable use of eminent domain. This law allowed renters to take property from their landlords. In her opinion, another example of judicial deference and the rational basis test, Justice Sandra Day O’Connor wrote:

This Court will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause.
[…]
The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.

Rehnquist, often referred to as an Originalist, joined the majority this decision and ironically, O’Connor’s dissent in Kelo has been praised, but her opinion in Midkiff was actually cited as precedent by the majority.

Since Kelo 42 states have enacted some sort of protection for private property rights, some stronger than others. Florida easily has the strongest of any state.

I wrote commentary for the Georgia Public Policy Foundation last year about what had taken place in our state since the Kelo ruling and the need for more constitutional protections for property owners. The statutory law passed by the Georgia General Assembly was very good, but the constitutional amendment left the door wide open for future abuse. There are no actual protections for property owners in the amendment nor is the term “public use” defined. It points back to “general law,” which is set by the legislature and can be changed at anytime during a legislative session by a simple majority vote. An attempt to patch this massive hole in the amendment was defeated by two votes in the State Senate.

Needless to say, there is still much work to do in Georgia.

We need to press our elected officials at all levels of government and remind them that property is sacred. We do not spend our lives laboring to provide for ourselves and families only to have the government come and take the most sacred of our rights from us. Simply put, property rights are not subject to a majority vote.

We also must challenge progressivism and “cult of the collective.” We as individuals have natural rights that cannot be infringed upon by govternment.

“When ‘the common good’ of a society is regarded as something apart from and superior to the individual good of its members, it means that the good of *some* men takes precedence over the good of others, with those others consigned to the status of sacrificial animals.” – Ayn Rand