Tak­ing back prop­erty rights

Kelo decision needs to be plowed un­der

The Washington Times Daily - - Opinion -

Congress is tak­ing steps to re­verse a Supreme Court decision that turned a thriv­ing mid­dle-class com­mu­nity into a waterfront waste­land. It’s about time Kelo was knocked off-kil­ter.

On Tues­day, the House passed a bill aimed at mit­i­gat­ing the im­pact of the con­tro­ver­sial 2005 Supreme Court rul­ing in Kelo v. City of New London. The bi­par­ti­san mea­sure was co-spon­sored by po­lit­i­cal po­lar op­po­sites Rep. F. James Sensen­bren­ner Jr., Wis­con­sin Re­pub­li­can, and Rep. Max­ine Wa­ters, Cal­i­for­nia Demo­crat. It would with­hold fed­eral de­vel­op­ment aid to states or mu­nic­i­pal­i­ties that seize pri­vate prop­erty solely for eco­nomic-de­vel­op­ment pro­grams. It would bar fed­eral tak­ings for the same pur­pose and give prop­erty own­ers un­der threat of such tak­ings the right to sue in fed­eral court. This fol­lows a 2006 ex­ec­u­tive or­der that re­stricted land grabs “for the pur­pose of ad­vanc­ing the eco­nomic in­ter­est of pri­vate par­ties to be given own­er­ship or use of the prop­erty taken.”

In Kelo, the high court sided 5-4 with New London, Conn., on the ques­tion of whether the city could use the em­i­nent-do­main power to seize 91 acres of pri­vately owned waterfront prop­erty to hand over to a pri­vate de­vel­oper. The tak­ings clause of the Fifth Amend­ment states that pri­vate prop­erty shall not “be taken for public use, with­out just com­pen­sa­tion.” The city ar­gued that this tak­ing would lead to 3,169 new jobs and $1.2 mil­lion a year in tax rev­enues and thus fell un­der con­sti­tu­tion­ally ap­proved “public use.” The Kelo case dif­fered from other se­ques­tra­tion cases in that the prop­erty to be con­demned, a neigh­bor­hood called Fort Trum­bull, was a well-main­tained mid­dle-class com­mu­nity rather than a de­pressed slum. The “public use” was not a high­way or a bridge but a re­de­vel­op­ment scheme the city gov­ern­ment had de­cided would spruce up the town. The court de­ter­mined that the mere as­ser­tion that the ac­qui­si­tion would ben­e­fit the city was good enough to pass muster. Fort Trum­bull’s res­i­dents were bought out, and the neigh­bor­hood was lev­eled.

Prop­erty is a pre-em­i­nent Amer­i­can civil right. It should be vi­o­lated only when a clear and com­pelling public in­ter­est is in­volved. It should never be cast aside based on un­sup­ported no­tions that a given piece of prop­erty might be bet­ter used in some other way, par­tic­u­larly when the gov­ern­ment is act­ing as the agent for a real es­tate de­vel­oper. As Jus­tice Clarence Thomas noted in his dis­sent, the im­pact of the decision “will fall dis­pro­por­tion­ately on poor com­mu­ni­ties [that are] the least po­lit­i­cally pow­er­ful.” Kelo es­sen­tially le­gal­ized gam­bling with mu­nic­i­pal money and the lives of home­own­ers. There is no bet­ter il­lus­tra­tion of the court’s flawed logic than the fate of Fort Trum­bull. The promised ben­e­fits never ma­te­ri­al­ized. The de­vel­oper was un­able to fi­nance the promised new con­struc­tion, and the area was left an over­grown waste. In the sum­mer of 2011, fol­low­ing Hur­ri­cane Irene, the city des­ig­nated it as a dump.

The House bill is a use­ful mea­sure to mit­i­gate the im­pact of Kelo. If the Se­nate fol­lows suit and Pres­i­dent Obama signs the bill into law, it would dis­suade states and mu­nic­i­pal­i­ties from at­tempt­ing to plow un­der more neigh­bor­hoods and dis­rupt more lives. Dis­pos­ses­sion should never be jus­ti­fied based on the prom­ises of self-in­ter­ested real es­tate spec­u­la­tors. This bill would give prop­erty own­ers a fight­ing chance while wait­ing for the Supreme Court to come to its senses.

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