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Ten years ago, the United States Supreme Court effectively scratched the line “for public use” from the Fifth Amendment’s Takings Clause, which allows the government to take and repurpose private property. The 5-4 decision in Kelo v. New London said that property may be taken from one private owner and given to another private owner if it will generate more revenue for the city.
Justice Sandra Day O’Connor wrote in her dissent that “[t]he beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
The Institute for Justice represented Susette Kelo when her house was condemned by the city in 2000. This week, Dan Alban, an attorney for the Institute for Justice, was the first witness at a House Judiciary Subcommittee on the Constitution and Civil Justice hearing to investigate the state of property rights in America ten years after the decision that devastated the Fifth Amendment.
Alban testified that if the government is given the power to transfer property from one private party to another, property will be transferred to those who are wealthy and well connected. He explained that while 44 states reformed their eminent domain laws in the wake of Kelo, the reforms were not extensive enough and abuse of eminent domain actually tripled.
While Kelo’s property was originally taken with the purpose of positively affecting the community, the development project was abandoned and the land where her home once stood is now a vacant lot.
Alban wants to make sure federal funds are not used to support forced transfers of property.
“There is still a strong need for Congress to take action,” Alban explained, pointing to the fact that some states, like New York, have taken no action at all to protect the property rights of individuals.
Chairman Franks (R-AZ) said that personal property rights are at the foundation of our society and we have a duty to protect them “in the face of increasing regulations.” This sentiment was echoed around most of the room. Representative Goodlatte (R-VA) said that the Kelo decision served to “trample on Americans’ property rights” and “no one should live in fear of the government snatching up” their property. Goodlatte went on to cite that only 10% of those whose property is seized receive compensation.
Representatives Conyers (D-MI) and Cohen (D-TN) were the voice of opposition in the room, ironically enough taking a stance in favor of states’ rights. Conyers contested any action by congress, saying that he wishes to “respect principles of federalism” and believes “federal intervention is unnecessary and inappropriate at this time.”
Cohen came off as bombastic, incoherent, and disrespectful, yelling at the witnesses and repeatedly asking if the Koch brothers were funding their organizations, implying that the witnesses were swayed by money as opposed to defending liberty on their own belief systems.
The room responded snidely to these remarks. Alban proudly asserted that the Institute for Justice defends “people’s constitutional rights regardless of level of government,” and Representative DeSantis (R-FL) questioned whether any other protection written into the constitution is “left to the state courts to decide if they want to enforce or not.”
The Congressmen also addressed the constitutionality and issues associated with “regulatory takings,” such as environmental regulations, which limit the free use by an owner of his or her property. Property owners rarely see compensation for the value of their property, and they are unable to fight for their property rights in federal courts.
Representative King (R-IA) was deeply concerned with the overall state of property rights in our country, and proposed amending the Constitution to expand the rights of individuals. He joked, however, that the Fifth Amendment already provides for the property rights of individuals; what are we supposed to do, he questioned, add “and we really mean it” to the Takings Clause?
Well, Mr. Congressman, it might be redundant, but if that is what it takes, please do! We cannot allow for the slow degradation of the Constitution and individual liberties.