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The issue of eminent domain is receiving renewed interest thanks to a new movie about Susette Kelo, whose property was taken by the City of New London, Connecticut to enhance the city’s tax base. The movie, Little Pink House, was recently released in select theaters across the country. Conservative columnist George Will wrote that the movie, which was directed by Courtney Balaker and co-produced by Ted Balaker, “will win the Oscar for best picture if Hollywood’s political preening contains even a scintilla of sincerity about speaking truth to power.”
Eminent domain isn’t only a focus of one film on the Silver Screen. It may also soon be a focus on the floor of the House of Representatives.
On Wednesday, the House Judiciary Committee will markup the Private Property Rights Protection Act, H.R. 1689, introduced by Rep. Jim Sensenbrenner (R-Wis.). FreedomWorks released a letter of support for the bill in May 2017.
For those not familiar with eminent domain, it’s the tool by which local and state governments, as well as the federal government, can take private property for a public use. The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.”
In Kelo v. City of New London (2005), the Supreme Court redefined “public use” to mean “public purpose,” which can include economic development. At issue in the case were the homes of Susette Kelo and some of her neighbors in the city’s Fort Trumbull neighborhood. The city and state governments hoped to attract Pfizer by offering a tax abatement package of nearly $80 million.
But New London wanted to revitalize the area to attract more businesses and used eminent domain to condemn the homes of Kelo and her neighbors. The condemnation notice of Kelo’s home was served to her the day before Thanksgiving in 2000. In the end, Pfizer moved on, and the lot on which Kelo's home sat is now vacant. Put simply, though, what New London did was theft.
Sadly, in a 5 to 4 decision, the Supreme Court changed the definition of “public use” and gutted the protections provided under the Fifth Amendment. The case was the final nail in the coffin of the Takings Clause.
In his dissent, Justice Clarence Thomas wrote, “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities,” which, he added, “are also the least politically powerful.” (This is one of several cases that makes this author scoff at the notion put forward by some that Justice Anthony Kennedy, who joined the leftists on the Supreme Court to allow New London to steal Kelo’s property, is somehow a libertarian.)
Some states have acted to address the Kelo decision -- either by constitutional amendment, by statute or both -- to ensure that private property rights were protected. The Institute for Justice, which represented Kelo, keeps a scorecard of state eminent domain laws. Nearly 13 years after the judgment in Kelo, Congress, however, hasn’t acted.
The Private Property Rights Protection Act would prohibit any state or any subdivision of the state that received federal economic development funds from using eminent domain for purposes of economic development for seven years after enactment. The prohibition applies to individuals or entities that are delegated with the power of eminent domain. If a state or subdivision of the state violates the prohibition, it will be denied federal economic development funds for two years.
The bill would prohibit the federal government from using eminent domain for economic development purposes. It would also provide private property owners with more rights for action should their property be taken for Kelo-style takings in conflict with the bill should it become law.
James Madison once wrote, Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own." The right to private property is the most basic human liberty. It is, perhaps, one that we take for granted. But the Kelo case is a reminder that we must guard these liberties to the extent possible from government overreach. If we fail to do so, your little pink house or whatever color home you own, might be next.