July 5, 2005

July 5, 2005 | Commentary on

Legislative Lowdown -- Week of July 4th

Five justices on the U.S. Supreme Court triggered a judicial earthquake on June 23. Their ruling in Kelo v. City of New London sparked bipartisan anger on Capitol Hill and showcased the breathtaking power activist judges have to redefine the Constitution.

The court's narrow 5-to-4 decision effectively airbrushed the 5th Amendment's "takings" clause from the Constitution. This completed a long judicial process whereby the court has gradually but steadily eroded the amendment's promise that private property shall not be taken for "public use" without "just compensation."

The decision grants government seemingly unlimited power to seize private property from one owner and transfer it to another, so long as the government predicts the new use will, as dissenting Justice Sandra Day O'Connor put it, "generate some secondary benefit for the public-such as increased tax revenue, more jobs, maybe even aesthetic pleasure."

Kelo involved an effort by the city of New London, Conn., to bulldoze several waterfront homes and replace them with an "urban village" complete with a $300-million Pfizer corporate facility, upscale housing, a "river walk" and the usual assortment of restaurants and quaint boutiques. But the project stalled when the property owners refused to sell. Thus, the court found itself in the unprecedented situation of deciding whether the 5th Amendment permits government to transfer property from one owner to another for purely economic reasons.

Property in Jeopardy

The majority's decision to side with New London officials, O'Connor warned, means "the specter of condemnation hangs over all property" and "nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

In his own dissent, Justice Clarence Thomas called on the court to re-evaluate all its jurisprudence on the takings clause, arguing that it "is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property." He contrasted the court's "overriding respect for the sanctity of the home" when it comes to searches and seizers with its near-total deference to governmental "public use" decisions that might result in the tearing down of those same homes. "Though citizens are safe from the government in their homes," Thomas concluded, "the homes themselves are not."

What are the political ramifications of Kelo? Two immediately come to mind.

First, as O'Connor and three other justices put it, the court's willingness to "effectively delete the words 'for public use' from the takings clause of the 5th Amendment" reinforces the importance of confirming a conservative to the court, should an opening occur this year.

Second, the decision could create some fascinating political alliances. Farmers and small property owners in the West may find common cause with the working poor in cities where development pressures are rife. Rep. Richard Pombo (R.-Calif.), who has long championed the rights of besieged property owners in his agricultural district, said the ruling "has delivered the property rights assault from rural America right to the doorsteps of suburbia." Rep. Maxine Waters (D.-Calif.) noted that the decision reaches to the doorsteps of the inner-city residents she represents. Kelo, she said, is "dangerous" because "your city fathers could get together with developers and take land in ways it has never been done before."

Bipartisan Anger

Waters has pledged to work with her Republican House colleagues to "take back" the 5th Amendment. Meanwhile, Sen. John Cornyn (R.-Tex.) introduced legislation to prohibit the federal government-and any government that uses federal funds-from exercising the power of eminent domain to advance economic development projects. The decision sparked a flurry of legislative activity among lawmakers, ranging from a strong resolution of disapproval authored by Rep. Phil Gingrey (R.-Ga.) to an attempt by Rep. Scott Garrett (R.-N.J.) to prohibit the use of federal funds for abuses of the takings process.

Cornyn's remedy is necessarily limited due to the constitutional basis of Kelo. Short of an ill-advised effort to clarify the clear meaning of the takings clause, only the appointment of judicial conservatives to replace Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg or Stephen Breyer can fully rectify the situation.

Mr. Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.

About the Author

Michael Franc Distinguished Fellow
Government Studies

First appeared in Human Events