Flaming Duck

Fallout from the Kelo Decision

There are plenty of thoughtful posts about the Supreme Court's KELO v. CITY OF NEW LONDON decision. For a good balance between opinion and fact I would refer you to Local Liberty Blog. Instead, I want to explain how KELO could affect local governments. I know most of us don’t realize how the Constitution affects the actions of our local governments. We think that Constitutional law is about ephemeral things like free speech and the right to carry guns. Maybe a quick explanation is in order.

In summary, the KELO case is about the Fifth Amendment. "What! I thought the Fifth Amendment was about 'self incrimination' and stuff." Well, yes. This amendment is really about personal rights when government (including local government) comes "knocking at the door." The first part of the Fifth Amendment says:

"'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;..."

The first phrases define your rights when you are accused of a crime but the very last phrase states:

"...nor shall private property be taken for public use without just compensation."

This phrase was meant to limit governments (especially local government) use of “eminent domain” to “take” land.

To date, "public use" has always meant road, or school or fire station (or other "public good"). It has also been used to help cities rebuild blighted areas. The ground-breaking part of KELO changes that situation. Now, a public use can also be an increase in the tax base. In other words, if a new Wal-Mart (poor Wal-Mart always gets picked on) wants your land then they can ask the city to use it’s power of eminent domain to take your land and give it to them. All of this is because a Wal-Mart will generate more taxes than your home.

All this would be bad enough but KELO goes even further. Remember the Fifth Amendment does allow government to take land from private individuals for the good of the community but it requires that the individual be fairly compensated. KELO also allows reduces the basis for that compensation from “highest and best use” to the prospective use. In other words, your home may be in a prime area where a developer may be willing to pay big dollars to put up a resort. But if this prospective developer wants to build a parking lot, then you would be compensated at parking lot value instead of high-dollar resort value.

Fortunately, the KELO decision was 5-4 with some very strong dissenting opinions. I can still hope that this decision will be short lived.

But never fear dear reader. There is one bright spot in this whole affair. It looks like states recognize the potential problems and there are several ways that this decision can be minimized. Both Texas and Michigan already have laws on the books that reign in tyrannical local governments that might try to take advantage of the KELO decision. You see, KELO only states that taking property from a private individual to give to another private individual is not unconstitutional. But it does not PREVENT states from passing laws that make it against STATE law. In the specific case of Michigan, it already has a law that says a jurisdiction cannot use economics as justification in a takings case. Good on them!

Please remember, there is a role for government in our lives. But it’s not to to charge us for services that are already funded through tax dollars and it’s not to bow to menial demands of whiny citizens. We will get the government that we ask for. Let’s be sure to demand the best!

posted by VARepublicMan @ 9:57 PM