Protecting Private Property

The last clause in the Fifth Amendment to the U.S. Constitution reads, “nor shall private property be taken for public use, without just compensation.” This is the provision used to defend the use of eminent domain laws, in which the government seizes private property without the consent of the owner, in order to serve some public purpose. Railroads, interstate highways, and other projects that require large swaths of land are frequently cited as justifications for the law, as it is unlikely that they could have completed—at least not without a significantly higher cost—if private land owners could simply refuse to sell to the government, regardless of the offered price.

Regardless of whether we agree with these justifications, there can be little doubt on either side that recent years have seen great abuses in the law, far out of line with its original intent. The most troubling development came in 2005 with the Supreme Court decision in the case of Kelo v. The City of New London, where the Court ruled that a state could seize private property to then hand over to private developers in the name of “economic development.”

To be clear, the Court’s ruling legalized the formerly unheard of practice of forcibly transferring property between private entities under a pretense so vague that it could be applied to nearly anything. “Economic development” can be used to justify everything from a shopping center to a new Walmart, and the idea that citizens can be forced from their homes to make way for such projects should be terrifying to anyone concerned with the preservation of liberty.

More recently, even the pretense of economic development has been abandoned, as a Colorado county has seized a 3-acre plot of private property by claiming that the land was “biologically sensitive” and needed to be protected from its humble owners. The couple in question, Ceille and Andy Barrie, attempted to fight the county in court, but in the end were forced to settle for a paltry $115,000, an amount that barely covered their attorney fees, and certainly not enough to be considered “just compensation.” Given that the government has the resources of hundreds of millions of taxpayers to fight its case, there can be but little hope for the individual attempting to stand up for his right to his own land.

Fortunately, Congress is beginning to recognize these abuses of government power. At the end of a year that saw scandal after scandal related to partisan and intrusive activities by regulatory agencies, the House of Representatives responded by advancing a series of bills in what it is calling the “Stop Government Abuse” week. Among these was a bill first proposed by Rep. Jim Sensenbrenner (R-WI) in 2013 entitled the Private Property Rights Protection Act. The bill would ban states from using eminent domain for the purposes of economic development if they receive any federal funding for the same purpose, and would help empower individuals to take legal action against the state if they believe their property was illegally seized.

Bills such as this are important, not only to preserve the right to private property, but also to rein in the destructive partnership between big business and government. When the state has the power to confiscate private land and hand it over to big corporations to develop, the incentives for corruption are huge.

A government with the power to reward well-connected interests with other people’s land will tend hopelessly towards corporatism, brokering power on behalf of its allies in exchange for financial and political support. It’s a concept that should frighten both conservatives, whose fears of an activist government have recently been shown to be well-justified, and those on the left who have an instinctive distrust of corporate power.

Strongly protected property rights are the key to any free society. Without assurances that what we own is really ours, the incentives to invest, to build, and to produce are greatly diminished. Eminent domain is meant to be used for public projects, not as a mechanism to transfer property into private hands. All Americans, regardless of political ideology or party affiliation, should support efforts to rein in a government that claims the right to redistribute, at will, the property of its citizens. Otherwise, the next land they seize may be your own.