Commentary

The Great Property-Rights Revival

In a powerful response to last year’s Supreme Court decision in Kelo v. New London, voters approved nine state-ballot initiatives prohibiting the seizure of homes and businesses for private development. These initiatives — in Florida, New Hampshire, Arizona, and Michigan — won in a landslide, with a nationwide average of some 75 percent in favor. Louisiana passed a similar initiative in October.

Only two eminent-domain initiatives — in California and Idaho — failed. California’s came within a few percentage points of succeeding, despite the powerful opposition of government and wealthy interest groups.

Add these to new laws enacted by the legislatures of some 25 states and recent anti-eminent-domain decisions by the supreme courts of Ohio, Oklahoma, and Michigan, and the message is clear: Americans are fed up with eminent-domain abuse.

In the Kelo case, a 5-4 Supreme Court held that bureaucrats may condemn homes and businesses and turn the land over to developers to construct shopping malls, condos, or other private for-profit developments. The theory is that such projects will “create jobs” or improve the local economy, and that this is good for society.

Now, the Constitution only allows the government to take property “for public use” — not for whatever politicians think is a good idea. Yet, in Kelo, the justices allowed the condemnations to go forward.

Government officials in many states saw Kelo as signaling open season on private-property rights. According to a report by the Castle Coalition, bureaucrats nationwide condemned or threatened to condemn 5,783 properties for private development in just the one year after Kelo was decided. All the while, they tried to spin that decision, falsely assuring people that, in most states, only “blighted” property could be condemned — even though the definition of “blight” is usually so vague that officials can declare virtually anything they want to be blighted.

Worse still, most state legislatures reacted to the national outcry over Kelo by passing meaningless window-dressing laws, designed to fool voters into thinking their concerns were being addressed. For example, in the month before the election, the California legislature enacted five laws supposedly restricting eminent domain. Yet these laws still allow the state of California to condemn property for private development whenever politicians believe there are “factors that substantially hinder the economically viable use of property.”

And that, of course, means whatever the government says it means.

Such ambiguity is extremely dangerous, because whenever government has the ability to take property from some people and give it to others, private interest groups will try to gain control over that power and turn it to their advantage. Wealthy developers spend tremendous amounts of time and money trying to convince government to use its power in ways that will produce profits for them. Home and small-business owners, by contrast, lack the money and influence to persuade government to respect their rights. They can rely only on the Constitution to protect them — or at least they could until Kelo, when the Supreme Court snatched that last shield away. Now, voters in ten states have replaced it.

In years past, bureaucrats have come to see themselves as responsible for creating the kind of cities they want to see, and they view citizens’ property as raw material for them to manipulate. The nationwide backlash against the Kelo decision should show them how wrong that attitude is.

Government exists to protect people’s property rights, not to violate them. When it undertakes development by seizing people’s property and giving it to others, it commits exactly the kind of injustice our Founding Fathers rebelled against two centuries ago. On Tuesday, Americans rebelled against it again.

Timothy Sandefur is a staff attorney at the Pacific Legal Foundation, and author of the Cornerstone of Liberty: Property Rights in 21st Century America.