Judges Threaten Property Rights

Samuel Adams stated, “Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.” According to our U.S. Supreme Court, however, that third natural right is evidently dead.

Prior to the infamous Warren Court rulings of the 1950s, Americans had no need to worry about the government taking their property unless a genuine and necessary “public use” warranted doing so, but now that respect for private property is over. The Court made it abundantly clear in 1798 that “a law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it” (Calder v. Bull).

However, in 1954 the Warren Court ignored this Constitutional precedent. Instead, the Court opined that once the question of the public purpose has been decided, the amount and character of land to be taken for the project … rests in the discretion of the legislative branch” (Berman v. Parker). The Legislature? Remember when property rights were just that, rights, and they were held by the people?

John Adams was clear when he wrote, “The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” Despite these words of wisdom, what has the Court done to dilute further our property rights? Has tyranny come to rest on the pages of the Supreme Court’s opinions?

In 2005, the Court ruled in Kelo v. New London that the Constitution’s definition of “public use” was simply not broad enough for the government and it should now be defined as “public purpose.” This was an example of the Supreme Court amending the constitution without complying with the amendment procedures, simply by changing the meaning of a word. The Court then held that it considered an increase in tax revenue for the local government to be valid public purpose that justified taking from one owner to give to another.

In one of her last, and most conservative dissents on record, Justice O’Connor summed it up succinctly: “Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded …. 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.”

Thankfully the public has not sat idly by while their property is taken out from under them for nothing more than a higher tax bracket. Federal, State, and local elected representatives then heard the cries of the people, and legislation has been introduced and passed in some areas to limit the impact of this decision. But in other areas eminent domain proceedings, known by the term “condemnation proceedings,” have continued.