Supreme Court Justice Sandra Day O’Connor was right when she wrote in her dissent to Kelo vs. City of New London that now “the specter of condemnation hangs over all property.” She was also quite correct to note that the decision undermines an important Constitutional protection that all Americans had taken for granted over the past two centuries.
When the 13 states voted to adopt the Constitution in 1791, they appended to the original document ten amendments guaranteeing certain basic rights to protect ordinary citizens from the depredations of an overreaching government. Among those rights was the Fifth Amendment protection of private property from unlawful seizure by government. Known as the “takings clause,” Americans’ property rights have been secured, until recently, by the phrase “nor shall private property be taken for public use without just compensation.”
But that was then and this is now. On June 23, 2005, Justice John Paul Stevens wrote for the majority of the U.S. Supreme Court that private property can be taken by government for the purpose of economic development.
There may be a silver lining in all of this: Kelo is not merely a bad decision, but one so utterly repellent that it has flamed a firestorm of anger and rebellion across the nation. Concerned citizens now know that, thanks to Justice Stevens and his colleagues, when the wealthy and powerful covet their property, they are without any protection, stripped of their basic Constitutional rights. Distilled to its essence, Justice Stevens’s ruling has not just entitled the rich to prey upon the poor, but it also supports a process that encourages them to do so and thereby grants planners the resources and violence of the state to facilitate their acquisitive interests. Perhaps not since Dred Scott have the weak been so abused by the nation’s highest court.
So what to do? To his credit Senator John Cornyn (R-TX) has lit the match of rebellion with the introduction of the “Protection of Homes, Small Businesses, and Private Property Act of 2005” to prohibit the transfer of private property without the owners’ consent if the transfer is for economic development rather than public use. And House Judiciary Chairman James Sensenbrenner (R-WI) will introduce the “Private Property Rights Protection Act,” which is intended “to restore the property rights of all Americans the Supreme Court took away on June 23.” But more needs to be done, and the Court has handed President Bush an extraordinary opportunity to stand tall in defense of the ordinary people who have stood with him throughout his presidency.
