- The Washington Times - Sunday, July 17, 2005

Who says you can’t fight city hall, or even the Supreme Court?

A long-overdue property rights revolt is brewing around the country in response to the high court’s outrageous decision last month in Kelo v. City of New London, Conn. The court ruled that governments can seize private property and then turn it over to big-business interests for economic development.

The alarming property takeover ruling, by a narrow 5-4 vote, reminds us anew of the sweeping governmental powers issues that are at stake in choosing who will replace retiring Justice Sandra Day O’Connor (who, by the way, wrote a blistering dissent against the decision).

The use of eminent domain to condemn property and purchase it at a fair market value for public purposes, to build roads and erect other public facilities, has been an accepted practice by state and local governments, though one that is restricted by the Fifth Amendment to the Constitution. It guarantees private property shall not be seized by eminent domain except for “public use” and in such cases, only for “just compensation.”

But in the case against Susette Kelo, the city of New London went far beyond that constitutional stricture and said her property could be taken, not for public use, but to promote local economic growth by turning it over to developers for anything from strip malls to amusement parks.

The June 23 ruling has triggered a political backlash in Congress and in many states. Fueled by mounting grass-roots anger, a number of state legislatures are expected to act on anti-seizure legislation before year’s end, and many more are expected to act early next year.

The House quickly condemned the court’s decision by a vote of 365-33 and bills have been introduced in both chambers, drawing strong support across the political spectrum, from House Majority Leader Tom DeLay on the right to Michigan Rep. John Conyers Jr., the top ranked Democrat on the House Judiciary Committee, on the left.

“We’ve been getting calls from all over the Hill from House members and senators looking to do something legislatively to address this issue,” said Nancie Marzulla, president of Defenders of Property Rights, a group that has led the charge in many eminent domain battles.

“I think there is a sense of urgency because people are outraged,” she told me. “For people on the Hill to be responding in this way means they are hearing from their constituencies who are calling up their offices and saying, ‘What are you doing about this?’ ”

And for anyone who wonders what the issues will be in next year’s elections, it’s a safe bet this will be one. “It’s a powerful political issue based on the reaction I’ve seen and what our members are hearing,” says Duane Parde, executive director of the American Legislative Exchange Council (ALEC), which represents 2,400 state legislators across the country.

ALEC is now drafting a model bill to ban property seizures for commercial purposes and, once approved by its board, will be sent to all its members for legislative action. A growing number of states have eminent-domain reform bills pending, including Delaware, Georgia, Minnesota, New Jersey, Texas and the “cradle of liberty,” Massachusetts.

In Alabama, Gov. Bob Riley has just introduced a bill in the legislature’s mid-July special session. Bills are expected to be introduced in Illinois and Pennsylvania.

Massachusetts House Minority Leader Brad Jones, after a deluge of angry constituent phone calls, introduced a nonbinding resolution condemning the court’s action and was swamped with both Democratic and Republican cosponsors.

He filed a statute last week that would prohibit local officials from taking private property by eminent domain for the sole purpose of economic development, and will seek a state constitutional ban as well. “We’re not taking any chances,” he says. “Respect for private property rights is a founding principle of our democracy. It’s crucial for the legislature to take a stand to defend those rights.”

In a biting dissenting opinion, Justice O’Connor warned that under the court’s ruling, “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. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms,” she said. “As for the victims, the government now has license to transfer property from those with fewer resources to those with more.” The Founding Fathers, she said, “cannot have intended this perverse result.”

By dropping the words “for public use” from the Fifth Amendment, the Supreme Court opened the door for powerful developers to take over someone’s property for their own commercial enrichment.

The counter-revolution now begins in the states to permanently nail that door shut.

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.

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