July 5, 2005
By Paul Rosenzweig and Todd Gaziano
One of the "great first principles of the social compact" is
that a legislature cannot "take property from A and give it to B."
So said the Supreme Court just after our nation was founded.
"It is against all reason and justice," the court said in 1798,
"for a people to entrust a legislature with such powers; and,
therefore, it cannot be presumed that they have done so."
Well, so much for that 200-year old presumption.
Just a few days ago, by a 5-4 vote in a case called Kelo v.
City of New London, today's Supreme Court rejected the
founders' wisdom and said it was perfectly fine for the city of New
London, Conn., to take Wilhelmina Dery's house -- a house her
family had lived in for more than 100 years -- and 14 neighboring
houses (including one owned by Suzette Kelo), and give them to
Pfizer, Inc., so it could knock them down and build a global
Why would the city do that? Apparently, Pfizer will pay more in
taxes than Dery and her neighbors. And according to the Supreme
Court, that's enough. No longer is your home your own. No longer do
we believe, as William Pitt, Earl of Chatham, said in a 1763 speech
to the House of Lords, that: "The poorest man may in his cottage
bid defiance to all the force of the crown. It may be frail; its
roof may shake; the wind may blow through it; the storms may enter,
the rain may enter. But the King of England cannot enter; all his
forces dare not cross the threshold of the ruined tenement."
Instead, our new city-kings can take any property they choose --
particularly if they take from the poor and give to the
higher-tax-paying rich. How's that for turning Robin Hood upside
down? Is it any wonder that minority groups such as the NAACP were
on the side of Dery and are now up in arms? As Justice Sandra Day
O'Connor correctly wrote in her dissent: "The specter of
condemnation hangs over all property." No property is safe from
expropriation by the government.
Congress has moved quickly to respond. Already, members of both
houses have introduced legislation to restore the property rights
the court eliminated. Prospects for passage are uncertain, and they
are unlikely, in any event, to undo all the damage.
But there is one important step we can take right now -- one our
elected representatives can adopt that will say, louder than any
other, how bad this decision was.
In the current appropriations cycle, Congress should authorize the
purchase of land to construct five monuments. The monuments will
stand as memorials to the importance of property rights. They
should be dignified and respectful, with readings from history
about property's foundational importance to liberty. They should be
open to the public as educational trusts combining equal parts
history and political theory. Even before the Supreme Court's new
theory of property rights, these monuments clearly would've been
appropriate -- they will be owned by the government and open to
traditional "public use," like our other national monuments.
Of course, these new monuments will need sites for their
construction. They should not only be appropriate in terms of
location, but should carry with them, if possible, a certain
symbolism of their own -- so that the monuments, by their very
existence, convey the importance of property rights in American
Those criteria are difficult to meet. Fortunately, however, five
perfectly suitable sites exist. We only hope that the five justices
who formed the majority in Kelo will understand if the federal
government takes their houses for public use as a memorial. We
should be grateful to Justices Stevens, Kennedy, Souter, Ginsburg
and Breyer for their contributions to America's legal development
-- and even more grateful for the contribution of their homes as
federal memorials to the death of property rights.
Gaziano and Paul Rosenzweig are,
respectively, director and senior research fellow in the Center for
Legal and Judicial Studies at The Heritage
Distributed nationally on the Knight-Ridder Tribune wire
One of the "great first principles of the social compact" is that a legislature cannot "take property from A and give it to B."
Paul Rosenzweig and Todd Gaziano
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