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Property Rights Foundation of America Position Brief

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Act Now, After Kelo, a Time of Outrage and Opportunity

"There is a tide in the affairs of men,
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and miseries.

- William Shakespeare, in Julius Caesar (1599)


Enemies of property rights are afraid. Their response to the U.S. Supreme Court's unconstitutional Kelo v. New London decision in June 2005 is to try to hold off action as long as possible, under the premise that the anger of American citizens will die down and unprincipled government can retain the monstrous eminent domain power endorsed by the high court.

At the important New York State Senate hearing on eminent domain reform after Kelo that was held at the Capitol on October 18, 2005, the New York City Corporation Council pontificated that the City uses eminent domain only "sparingly" and that it is "vital to the wellbeing of the City." In summary, he said, "I urge you to defer consideration of the substantive proposals before you, to create a commission to examine the executive law, to evaluate its effectiveness and fairness to individual property owners and government."

Senator James S. Alesi, the Chair of the Committee on Economic Development, who presided at the joint hearing, sympathized with the viewpoint that the legislature should not act "hastily" to reform eminent domain law. He said, "Some state legislatures and Congress rushed to legislate. We're now having hearings throughout the state."

In his summary at the end of the hearing, Sen. Alesi made it clear that action would not be too soon. There is "no rush," he said. We will "accommodate the needs of people…economic development, local government, and those people who hold dear the right of property ownership."

During the hearing, he raised questions several times about the possibility of revising the State law's definition of "blight." Although this idea was of interest to him, he expressed no interest in the narrow interpretation of the words "public use" to confine eminent domain to the traditional sense understood by the framers of the Fifth Amendment.

The hearing was one of several held across the state. It left the impression that there was an agenda to diffuse citizen outrage and justify inaction, to drag out citizen participation by next convening a commission whose deliberations would stretch out until the intense reactions of citizens to Kelo will have died down. Or worse yet, remarks during the hearing left a suspicion that a bill with a meaningless definition of blight that would offer little protection to ordinary homeowners and small businesses would be welcomed.

However, the Chairman of the New York Senate Judiciary Committee, John A. DeFrancisco, who participated in the Senate's Syracuse hearing, introduced a bill that had as its most important feature that it "limits the use of eminent domain to true public projects, such as the construction of highways, schools, or parks." Sen. DeFrancisco also submitted a constitutional amendment to restrict the use of eminent domain to true public projects. Separately, he and Assemblyman Richard L. Brodsky each proposed legislation to require that eminent domain by any industrial development agency must be approved by an elected body. The New London condemnation and the majority of abuses of eminent domain in New York State were by unelected public authorities. Reforms of the nature proposed by Sen. DeFrancisco and Assemblyman Brodsky represent the changes that we should be supporting, good reforms to the eminent domain process and fundamental reforms restricting the uses for which eminent domain can be imposed.

Bills that prohibit eminent domain for economic development but take exceptions for certain definitions of blight could exhaust the enthusiasm and legislative participation of citizens on worthless causes that falsely appear to solve the problem of the misuse of eminent domain. One such bill is in Congress to prohibit the use of federal funds for eminent domain for the purpose of economic development, with the exception for "removing harmful uses of land provided such uses constitute an immediate threat to public health and safety." Isn't this where the steep slide began in the Supreme Court's ruling in the Berman v. Parker case in 1954, which ultimately resulted in the destruction of thousands of mostly Negro neighborhoods?

Our action for eminent domain reform should be immediate and unrelenting, and should display uncompromised principle. We also want important process reform, because it will help property owners. However, we do not want reforms that falsely pretend to solve the basic question of "public use" by redefining blight. With this stance, citizens acting now in the wake of the Kelo decision have a chance to restore the constitutional use of eminent domain.

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