Kelo and eminent domain abuse: What now?

Senate Majority Leader Bill Frist sent out the following response last Friday to the Supreme Court's ruling in Kelo v. New London:

As you may have heard...

The United States Supreme Court issued an opinion yesterday that has raised great concern among private property owners across America.

Understandably so.

In this case, known as Kelo vs. New London, the Court held that local governments can seize private property and give it to private developers -- if it is determined that those development projects also serve a public purpose.

The concern here -- as voiced by Justice Sandra Day O'Connor in her dissent -- is that "under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner."

Indeed, I share that concern.

The U.S. Constitution -- as provided under the Fifth Amendment -- gives government the right to take private property for public use after paying the property owner just compensation (eminent domain).

And, make no mistake, without this power it would be very difficult to build the roads, schools, and parks we all need and use.

Yet there are many important questions that we need to consider...

How can we be sure that a public purpose is served, when government transfers property from one private owner to another?

Does this decision give governments too much power over private property owners?

What assurances do Americans have -- those who work so hard to buy their own homes -- that government will not take those homes away?

Will this decision give undue advantages to politically connected developers and wealthy individuals?

Private property has long been a cornerstone of the Constitution and our American society. Indeed, our economy is based on the principle of private ownership of property.

It was John Adams who said:

"Property is surely a right of mankind as real as liberty."

Any infringement on that right cannot be undertaken lightly.

We should give careful consideration to these questions and explore the practical implications of this decision.

Bill Frist

(Hat tip to David Rollo for sending that along.)

I'm pleased to see that the Senate Majority Leader is concerned, even though his conclusion is comically vague. I hope his concern means that he will see to it that the next justice appointed to the Supreme Court is a strict constructionist -- someone who understands that "public use" means just that, not "public benefit" or "public purpose." And by "see to it" I mean break through a filibuster if necessary for a strict constructionist nominee and block any nominee from the White House that has a record of not reading the Constitution as written.

Assuming that that probably won't happen, what can be done to protect private property from being seized for political reasons? Here are some steps that Congress could take:

• Eliminate the Federal tax exemption for local government bonds issued to finance condemnation except for public infrastructure.
• Ban the use of Community Development Block Grant money (or other Federal funds) for condemnation except for public infrastructure.

The Oklahoma state legislature could do even more, since Oklahoma's counties and municipalities are creatures of the state:

• Tighten the statutory definition of blight to be restricted to real dilapidation. At the moment, your property could be considered blighted if it suffers from "arrested economic development," "inadequate parcel size," "predominance of defective or inadequate street layouts," or "diversity of ownership."
• Restrict the condemnation power of cities, counties, and public trusts, with a strict standard for "public use" and some sort of automatic independent review of whether the proposed use meets that standard.

At the local level, the matter is in the hands of the voters:

• Amend the city charter to restrict the scope of condemnation.
• Elect local officials -- mayor, city councilors, county commissioners -- who reject the use of condemnation except for public infrastructure.