[Congressional Record Volume 151, Number 142 (Tuesday, November 1, 2005)]
[House]
[Pages H9454-H9459]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PRIVATE PROPERTY RIGHTS

  The SPEAKER pro tempore (Mr. Fitzpatrick of Pennsylvania). Under the 
Speaker's announced policy of January 4, 2005, the gentleman from 
Georgia (Mr. Gingrey) is recognized for 60 minutes as the designee of 
the majority leader.
  Mr. GINGREY. Mr. Speaker, my fellow colleagues on both sides of the 
aisle, and our constituents who may be listening to this hour this 
evening, we are going to talk about something that is well known to the 
general public, and that is the subject of eminent domain. It is well 
known, maybe not particularly liked by the general public, but 
certainly it is well known that, under the power, the government has 
the power under the Constitution and the fifth amendment to take 
private property for public use. This is something that has been 
recognized for 200 years.
  An example, the obvious example, of course, of public use would be 
for a school in a community that is growing rapidly, and youngsters 
need a place to get that public education. That is a public use of the 
power of eminent domain, that ability for a government entity, the 
Federal Government, the State government, a county government or 
municipal city government to literally take a person's private property 
for public use purposes and, of course, with just, fair market value 
compensation. That is something that we all recognize.
  As I said, when it is the individual who may have that little tract 
of land that they have owned for their lifetime and it was willed to 
them by their parents and willed to their parents by their 
grandparents, and maybe it is 50 acres, maybe it started out as 
farmland and ended up as just a homestead and a paid-for residence and 
a front porch with rocking chairs and a great view and clean air and 
clean environment and a place for the children and the grandchildren to 
come and play on the weekends. It is pretty painful indeed when John Q. 
Public comes knocking on the door. It may be the local school board, 
good, dedicated men and women who are trying to provide education for 
the children in the community; and that 30 acres is the last remaining 
plot of land in the whole county where a new high school is desperately 
needed because of development, economic development, new subdivisions, 
new roads.
  And people, of course, are powerless in the face of that authority of 
eminent domain. The only recourse they have, of course, is a plea and 
an appeal for fair market value of the land that they do not want to 
sell, they are forced to sell under this constitutional right of 
eminent domain.
  Maybe there is some negotiation. Maybe they are not happy with what 
is the public entity that is doing the taking, has set the price; and 
the homeowner, the property owner, small business owner, feels that 
that is not fair. Then certainly they have the right to appeal in our 
court system and our judicial system to the superior court of the 
judicial area in which they happen to lie.
  My colleagues, I think you all know that the Supreme Court on June 23 
of this year, 2005, made a decision, a narrowly split decision, as this 
court has done in so many other cases, particularly regarding our 
traditional values. That is not the purpose of this debate and this 
discussion, Mr. Speaker, tonight on the floor of this House.
  But this 5 to 4 decision all of a sudden expanded this power of 
eminent domain to include the taking of a person's home, small business 
for economic development, that is now being interpreted by this split 
decision of the Supreme Court to qualify under the fifth amendment, 
under the Constitution, the right to take someone's property by eminent 
domain for economic purposes, redefining, completely and totally 
redefining this definition of public use that probably a sixth grader 
would answer correctly if you asked them: Well, give us an example of 
public use. They would say a road or a bridge or possibly a public 
library, certainly a school, maybe even a sewer line easement, a 
natural gas line easement.
  But to suggest to them that, oh, no, now we are talking about taking 
somebody's property for the purpose of increasing the tax revenue. Let 
me just kind of set the scenario for my colleagues just as a perfect 
example.
  Under this ruling, June 23, 2005, this atrocious, we think, and of 
course on the floor of this body of this House with overwhelming 
bipartisan support, not unanimous but overwhelming bipartisan support, 
we expressed our outrage over this, the sense of the House, a 
concurrent resolution expressing our absolute outrage over this 
decision.
  What it basically says and what prompted and predicated this Supreme 
Court decision was a case in the State of Connecticut, the City of New 
London, and New London in this case being the defendant, the plaintiff 
was the property owner, Kelo. Their property was being taken for the 
purpose of nothing other than increasing the tax base, the tax revenue 
of that particular section of town where their property happened to be.

  The justification for it from the standpoint of the City of New 
London, that local jurisdiction, was, well, if we are able to take this 
property, which in our opinion, Mr. Speaker, I think everybody knows I 
am not a lawyer nor am I a real estate expert, I am just a little old 
meat and potatoes OB/GYN physician. But what they were going to

[[Page H9455]]

do was take this property so they could redevelop it. And, again, maybe 
it could have been a bakery, a small business that some immigrant 
family two generations came to this country, could not even speak 
English, but started on a street corner selling bagels and finally 
developed this little business and had that loyalty and that customer 
base and that value which we call blue sky on that business; and yet 
the tax revenue from that little business could be a house, could be 
your home, was not sufficient.
  So the local government entity, in this case the City of New London, 
decides, well, you know, if we can take that property, that business, 
indeed maybe even that church or synagogue or mosque, and we can take 
it by the power of eminent domain and get this broad definition of 
public use, and we could say, gosh, you know, the increased revenue 
will allow us to build more soccer fields in the county, more bike 
trails in the county. Well, maybe, just maybe, and I think without a 
shadow of a doubt Kelo felt that they did not want another soccer field 
and they did not want another bike trail, they wanted their property 
which had been willed to them and their family. They had obtained that 
property in a legal way. It was theirs. They are good public citizens, 
pay their taxes on time, contribute to the community, send their 
children to the public schools, volunteer for the booster's club, doing 
everything they can to make that community a better place to live.
  But can they help it that their business base was such that they only 
had a certain amount of revenue in any one year? There were just so 
many doughnuts and bagels to be sold. So they did not have an 
opportunity to have a high value on their business so that the local 
community could tax them, and so now they are going to come along and 
they are going to take that business so somebody else could come in.
  Mr. Speaker, in no way am I disparaging any good companies, but I 
mean, a Ritz-Carlton, even a Starbucks in this area that needs 
redeveloping pays a lot more taxes; and, yes, maybe some of that money 
could be put to the public use. But it is not at all what we understand 
and know and have known for 200 years the definition of a public use.
  So that is what we are talking about here, my colleagues, on both 
sides of the aisle. That is why we are here tonight. I am very 
fortunate that I have several of my colleagues who have joined me 
during this hour. They know how important this issue is. It is an 
important issue of the right to property, second only maybe to life and 
pursuit of happiness. But the right to property, Mr. Speaker, is one 
that cannot, should not be abridged.
  We are going to have legislation, we are going to have legislation 
this week, so this is a timely hour so we can explain to our colleagues 
a little bit about what this bill coming through the House, hopefully 
the Senate will have a companion bill, this bill coming through the 
House Judiciary Committee. This majority, this Republican majority is 
not going to let this Kelo v. New London decision stand, and my 
colleagues are here with me tonight to talk about that.
  The gentlewoman from Tennessee (Mrs. Blackburn) is here, and I want 
at this time to call on her for her remarks, because I know she cares 
so much about this issue and cares about the folks back in Tennessee.
  Mrs. BLACKBURN. I thank the gentleman from Georgia for yielding to me 
and inviting me to participate this evening as we do talk about our 
rights and private property rights and what makes America great.
  As we begin this discussion, Mr. Speaker, I want to touch on 
something that a couple of our previous speakers, our colleagues across 
the aisle, had brought up, because we talk so much about what makes 
America so unique and so wonderful, and private property is one of 
those.

                              {time}  2015

  I know the gentleman from Georgia (Mr. Gingrey) and so many of our 
colleagues have joined me in working with some of the individuals in 
Iraq as they have fought to establish their freedom and to seek to have 
the opportunity to own private property. And I found it so interesting 
listening to some of my colleagues as they were talking about how Iraq 
was a quagmire and things were not going right. And I thought, my 
goodness, you think about the thoughtfulness that our Founding Fathers 
put into establishing this Constitution and the years and years and the 
hard work that went into this as they came together as a body, as they 
met, as they came about developing that Constitution, as they worked to 
list out a Bill of Rights and things that they thought would be so 
important. It did not happen overnight. It did not happen within a 
year, and it did not happen within 2 years.
  I could not help but think we have just witnessed a big vote in Iraq, 
very successful. Over 65 percent of the people in that great nation 
came out and voted on a Constitution. We are watching a nation walk 
very consistently and very slowly. Some days they take a few steps 
forward. Some days they take a step or two back; but they have to keep 
plugging along, working toward the time when they will enjoy the 
freedoms and the fruit and the benefits of a free society. And one of 
those definitely is private property.
  Many of my constituents, as the gentleman from Georgia (Mr. Gingrey) 
said, they know that that fifth amendment is important. They have 
worked hard to be able to stake out their little corner of the world. 
As some of them have said to me, We know something is wrong. It is not 
happening right in Washington when they see decisions like the Kelo 
decision. The people have a very fine-tuned sense of right and wrong, 
and they know it is wrong when the Supreme Court paves the way for the 
government to come in and seize private property in order to build 
malls and other commercial-venture structures. They know there is just 
not something right about that.
  I rarely use the term un-American; but, Mr. Speaker, if there is 
anything that strikes me and my constituents as contrary to our values, 
it is this Kelo decision and there is just something about it that 
strikes it being un-American. It was a stunning display of judicial 
activism as the gentleman from Georgia (Mr. Gingrey) has pointed out.
  The Supreme Court stepped all over our property rights. And in 
Tennessee we watched this with a little bit of added interest because 
not only did we think in terms of those tangible property rights, but 
we think about those intellectual property rights that are so very 
important to our creative community, to our writers, to our television 
producers, to our film producers, looking at protecting both the 
tangible and the intellectual property rights. Our rights as Americans, 
our economy are based on very strong principles of private property 
ownership, private property protection, and the ability to work hard 
and to benefit by exercising those rights. It is such a fundamental 
right that it is hard to imagine our courts infringing upon it, but 
that is what they have done.
  I certainly hope, and I know my colleagues that are gathered here 
tonight join me in having hope, that American property owners at home 
will know that they have an ally in this fight and they have an 
advocate in this discussion, and it is the majority here in this House 
of Representatives. It is this Republican majority. And I hope that the 
69 percent of American homeowners who were watching this debate and 
watching our work on this legislation this week will know that we stand 
with them in maintaining that home ownership. We are just as concerned 
with this eminent domain issue as the American people are and we are 
going to work to strengthen the laws to protect private property, both 
real and intangible.
  This week we are taking up the Private Property Rights Protection 
Act. We might not be able to overturn the Supreme Court's Kelo 
decision, that is not within our jurisdiction; but we can make sure 
that not one single penny of taxpayer money, not one single penny of 
Federal funds is used to support the forced taking of your private 
property by local and State governments. This bill will ensure that any 
State or locality abusing their eminent domain power by using economic 
development as a rationale for a taking will not be trusted with 
Federal economic development funds that could contribute to similarly 
abusive land grabs. And we are going to provide access to State and 
Federal courts for those who believe this bill has violated, has been

[[Page H9456]]

violated in the seizure of their property.
  All of us want economic development for our community. We also want 
our citizens to be secure in the knowledge that their property is just 
that, that it is their property. We do not want them to fear that that 
fundamental right has been infringed upon and their property taken for 
development.
  I hope all of my colleagues on both sides of the aisle will join with 
us in supporting this much-needed legislation.
  Mr. GINGREY. Mr. Speaker, I thank the gentlewoman from Tennessee 
(Mrs. Blackburn). It gives me a little bit of a segue as she used the 
term ``activist judges'' and I think that that absolutely, Mr. Speaker, 
is what is going on here. We are in the process, of course, we have 
just confirmed our new Supreme Court Chief Justice, and now there will 
be hearing soon in the Senate Committee on the Judiciary for the 
confirmation, hopefully, of a judge to replace retiring Justice Sandra 
Day O'Connor. And all the talk, of course, is about the litmus test of 
abortion. Has the judge, the candidate judge in this instance, a judge, 
a circuit court judge of some 19 years of experience, what is his 
record on abortion? Is he pro-life? Is he pro-choice?
  Although our colleagues on the other side of the aisle, the members 
especially of that Committee on the Judiciary, say there is no litmus 
test; it is not, and that is a huge concern, I think, that issue for 
the American public. And they are watching very, very closely these 
proceedings that are going to occur, the hearings in the Senate 
Judiciary Committee. But this is an example of other things of judicial 
activism, of legislating literally from the bench. They may not rise 
quite to the level of the issue of what happened in 1973 in Roe v. 
Wade, but this is an important issue as is taking God's name, the name 
of God out of the Pledge of Allegiance.

  This is hugely important, and I think we are going to go a little 
deeper in the hour. I am very pleased that one of our former judicial 
members probably will be talking to these same issues. At this point, I 
would first like to call on the gentlewoman from Ohio (Mrs. Schmidt), 
one of our newest Members elected to this body recently in a special 
election. The gentlewoman and I have had conversations about this issue 
since June 23, 2005, shortly after she got here, as well as the outrage 
that she has expressed and the concerns that her constituents have over 
this back in Ohio.
  Mrs. SCHMIDT. Mr. Speaker, I thank the gentleman from Georgia (Mr. 
Gingrey). I am so glad that you pointed out about the importance of 
having the right people at the Supreme Court. I think that the judges 
that serve on the Supreme Court should take another look at the 
Constitution and recognize that their duty is to not make the law but 
to interpret the law, because in the Kelo decision, they trampled all 
over amendment five, or article V, of the Constitution and that is a 
right to own property.
  Our Supreme Court, since the 1940s, has become a little schizophrenic 
on issues near and dear to our hearts. The right to own property, the 
right to have liberty before birth, the right to have one Nation under 
God in the Constitution, is something that is going to be questioned, 
the right to have public expression, displays of public expression like 
the Ten Commandments paid for by citizens, they are not clear on 
whether that can stand or that cannot stand.
  Let me backtrack and say what I am talking about. See, for Christmas 
displays such as the crib or a menorah, you are allowed to put that on 
public property as long as you also allow on public property something 
generic like Santa Claus or Rudolph the Red Nosed Reindeer. But in my 
community in Adams County, when the good people of Adams County wanted 
to put the Ten Commandments on the four new high schools and they 
realized that because it was just all by itself it was too religious, 
they then garnered their money on their own, not public money, to put 
the Bill the Rights, the Declaration of Independence, other bodies of 
law surrounding these Ten Commandments to show that it was not isolated 
and not just a religious expression. But the Supreme Court said, no, 
you have got to remove the Ten Commandments.
  Now we see the same schizophrenic reaction with the right to own 
property, and I would like to look at the time line in how we got to 
where we are today and to tell you why I am so impassioned about this.
  This really began 50 years ago in 1954 right here in Washington, 
D.C., when the Supreme Court with Berman v. Parker decided that the 
city could take blighted property or property that they determined 
blighted, take it for a public use. But it was not until 1981 in the 
Poletown Neighborhood Council v. The City of Detroit that the Supreme 
Court really abridged our right to own property.
  In that case General Motors wanted to expand their plant and there 
was some blighted property there, and some of the home owners did not 
want to vacate that property. So the city of Detroit determined that 
they would be better off financially by purchasing the property, 
allowing General Motors to expand their plant; and the Supreme Court 
agreed.
  In 1984 they reaffirmed this in the case of Hawaii Housing Authority 
v. Midkiff in the United States Supreme Court. But in 2004, the 
Michigan Supreme Court backpeddled on the Poletown case. And in the 
County of Wayne v. Hathcock, the Michigan Supreme Court said, wait a 
minute, you cannot take private property, not for public use but for a 
developer's use, and said, no, you cannot take this property because a 
developer wants to get rich. And this was very important to me, and I 
will get to it in a minute. But on June 23, 2005, all this was changed 
with the Kelo case.
  Now, why should I care about the Kelo case in this second 
congressional district? Because of one resident in the city of Norwood, 
Ohio. Norwood is a great city within the city of Cincinnati, an old 
German city. And those Germans knew how to build homes. And I know that 
because my dad, son of German immigrants, built homes in Norwood, Ohio, 
70 years ago, and they are still standing today.

                              {time}  2030

  He knew how to build a brick structure, solid as a rock. Some of 
those homes now are ones he built, but some of those homes are right 
next to a very profitable shopping center.
  A developer decided he would like to expand the shopping center. So 
he went in and told the City of Norwick that he wanted to use eminent 
domain to take those homes. He offered those people a lot of money, and 
most of them bought into it because they are getting twice, three times 
the price that they could get on the open market.
  But there is one old man who is 82 years of age. He does not want to 
give up that home. He has lost his wife, but he raised their children 
in that home, and her smell is still inside those walls. It is more 
important for him to live inside those walls, regardless of what money 
you are offering him, because that is all he has got left in his old 
age is the memory of the woman he loved. And yet Kelo would say, too 
bad, too sad, this developer has the right to take your property, to 
take away your memory.
  I am going to stand proud on Thursday and vote for this very 
important bill. I am going to vote for it not just for the citizens of 
Ohio or the citizens of the 2nd Congressional District but, most 
importantly, for that 82-year old man.
  Mr. GINGREY. Mr. Speaker, I thank the gentlewoman from Ohio, and I 
thank her for bringing this right down on a personal level because this 
is personal and she described it to perfection.
  I did not go into the details of what happened in New London, 
Connecticut. Maybe we will touch on that in just a minute. But the 
gentlewoman from Ohio (Mrs. Schmidt) is absolutely right. That shopping 
center mogul had the opportunity to offer a fair price, an attractive 
price, and ended up buying most of the property without exercising or 
some government entity on his behalf exercising the power of eminent 
domain.
  That gentleman, that 82-year-old gentleman that the gentlewoman 
described so well, that felt the presence of his wife within the walls 
of that structure, that German structure, it is okay if he smells 
popcorn and doughnuts and sees youngsters going to the theater that has 
been developed all

[[Page H9457]]

around him. He has the right of property ownership to have that shrine 
of his, that little shrine right in the middle, and if they want 
another shot at it after he is gone and they want to deal with his 
heirs and his children, his grandchildren, then let him offer a price 
and buy the property.
  Mr. Speaker, I want to point your attention to this first poster I 
have. I do not have many, but this is exactly what the gentlewoman was 
talking about.
  It shows in the baby carriage homeowners and small businesses in the 
baby carriage. It shows the wheeler dealer with the lollipop. You 
cannot see it, but on that lollipop, the attraction of the lollipop, is 
the enticement or the power of eminent domain. And this little 
youngster on the other side is that shopping center mogul that the 
gentlewoman was talking about or maybe it is the pharmaceutical company 
that wanted to build this new research development center in the heart 
of New London, Connecticut. But not only did they want to develop the 
property for this research center, God knows we need research and I pay 
tribute to some of our pharmaceutical companies that bring us these 
wonder drugs, but they did not, in my opinion, the opinion of Suzette 
Kelo and the other homeowners that had 15 homes in and around that 
area, they did not have to take that as well. It was absolutely 
unnecessary.
  And that is the whole issue here, this ability to take, the powerful, 
in conjunction with a local government jurisdiction, for this expanded 
purpose of public use or economic development and a higher tax base, 
somebody's God-given right, constitutional-given right to their own 
property.
  We talked a little bit about the courts. I think at this time it is 
entirely fitting and appropriate to call on my good friend and 
colleague from the great State of Texas who knows a little bit about 
the courts. We are talking about municipal, State, superior, Federal, 
district, circuit and Supreme Court; and I yield to my colleague, the 
gentleman from Texas (Mr. Poe).
  Mr. POE. Mr. Speaker, I want to thank my friend from Georgia for 
yielding to me.
  It is true, I spent a lot of time as a trial judge down in Texas, 
about 22 years, trying a whole lot of cases. I have had the fortune, 
once I came here to Congress, to meet individually with some of our 
members of the United States Supreme Court to discuss philosophies, 
certainly not to try to influence them on specific cases but to talk 
about philosophy, about the United States Constitution. I respect the 
position that they hold, but to me, this ruling is wrong. It is a 
misinterpretation of a simple provision in the United States 
Constitution.
  The right of property in this country, sometimes we as Americans take 
the right of property for granted, but I think a little history is in 
order.
  When people started coming to the United States from Europe and from 
England, back in those days, in the middle ages, the king or the queen 
owned all the land, and the king or queen would bequeath certain 
portions of the king's property to the nobles. The nobles would have 
extensive land grants, and then they would have serfs, regular folk, 
work that land. But the real people, the working folks, never owned the 
land they worked on. It belonged to the nobles and then off to the 
king.
  So when people started coming to America, they started owning their 
own land. It was an individual right to own property; and, today, it is 
still, I think, the greatest American desire to own a piece of America, 
own the land. Usually, we get that with a house, but it is the greatest 
desire that most Americans have, and more Americans now own homes in 
this country than ever before, the right to property.
  When our forefathers got together and started talking about this new 
government, this new country, they were influenced a lot by John Locke. 
John Locke took the position that all of us are born with certain 
rights because we are individuals. He said hundreds of years ago that 
man has the natural right to life and to liberty and to property, three 
rights that really all other rights come from, the right to life, 
liberty, or freedom as we call it now, and the right to property.
  He influenced Thomas Jefferson so much that in the Declaration of 
Independence Thomas Jefferson wrote that we are given by our Creator 
certain rights, and he said they were life, liberty and the pursuit of 
happiness, which includes the right to property.
  Then, of course, in the fifth amendment of the United States, in our 
Constitution, our forefathers reaffirmed the basic rights that John 
Locke talked about hundreds of years ago and said that no person shall 
be deprived of life, liberty or property without due process of law. 
They went on to say in the fifth amendment, nor shall private property 
be taken for public use without just compensation, a very simple 
statement, and it is not difficult to understand.
  With all due respect to our northeastern law schools, I do not think 
you have to go there to figure out what the fifth amendment means. It 
is relatively simple.
  You may recall in the movie ``The Patriot'' with Mel Gibson, that 
somewhat fictional approach to the American Revolution, how in one 
scene there General Cornwallis of the British empire was talking to 
Colonel Tarleton and telling him, if we retake America, you will have 
all of these lands bequeathed to you by the king, the concept being, in 
the eyes of the British, the land in America still belonged to the 
British empire. That is why the American Revolution was so important. 
It not only gave us life and liberty, it gave us the right to own 
property.
  So property in this country is not just available to kings and to 
nobles, but it is available to the rest of us. This is why this fifth 
amendment was put in our Constitution, to give us the right of 
property.
  The argument in the fifth amendment was the whole concept of 
compensation, the idea that government could take property only if it 
paid for it and paid the owner of the property. It was never 
misinterpreted until this summer to have the right of government, we 
are talking about city councils generally, to take your private 
property for private use. We are not talking about public use. We are 
talking about private use, take our property and make a parking mall, a 
parking lot out of it. No offense to Wal-Mart, but Wal-Mart pays a lot 
of taxes. They could take my house and much of my neighbors' houses, 
make a Wal-Mart out of it, and they get a whole lot more tax incentives 
or taxes from that business than they would from the property owners. 
So that is the motivation to seize private property, to hand it over to 
other private entities for money. Mr. Speaker, it boils down to money. 
Too often, it often always boils down to the money trail.
  So the Bill of Rights certainly does not give, I think, government 
the authority to take private property for private use. The 
Constitution protects the rights of people. It does not give rights to 
government. Sometimes we think government has a lot of rights. 
Government, in our philosophy, only has the power we give it. 
Government is controlled by us, the people. The Constitution gives the 
rights to individuals, to people; and one of those rights in the fifth 
amendment is the sovereign right to own the land, to own a piece of 
America.
  So the Supreme Court has misinterpreted this simple provision of the 
Constitution and allows city councils to take land, bulldoze our houses 
without our consent and build a parking lot or a shopping mall. Those 
citizens' property is safe because it is given this authority, and I am 
glad to see that this House is doing something about trying to prevent 
any funding to allow this misinterpretation by the Supreme Court to 
take place. Certainly, this decision slaps in the face of our heritage. 
It slaps in the face of our history, our philosophy and what America is 
all about.
  Private ownership of property is vital to freedom. It is vital to 
liberty, and it is vital to certainly prosperity, and I think the 
Supreme Court has authorized land grabbing. They have sacrificed 
private property on the altar of greed. I think it is a big mistake. I 
think they are wrong. I think they violate the Constitution, and I 
think this is another example that the Supreme Court has lost its way 
in this decision and would hope that we can return to an understanding 
of the Constitution that was intended when it was written, an 
understanding that most Americans have.

[[Page H9458]]

  I want to thank my friend from Georgia for allowing me to make some 
comments on this 5-4 decision by the Supreme Court, this error in 
judgment that the Supreme Court justices have made.
  Mr. GINGREY. Mr. Speaker, I thank the gentleman from Texas, the 
judge, for sharing those thoughts with us.
  I wanted to assure the judge, as he well knows, that we intend to do 
something about it this week, and this is what H.R. 4128 does. It 
protects private property rights, and we will get into that in just a 
few minutes.
  Earlier we heard, Mr. Speaker, from our colleague from Ohio, and the 
gentlewoman talked about her father in fact who built some of these 
little German homes, he being of German ancestry. I am not sure that 
this next poster that I have got is a picture of a home in Ohio, for 
that matter even in New London, Connecticut, but, boy, it sure has a 
German look to me.
  I have been to Germany a time or two, a lovely country, and I have 
seen some residences, some houses, free-standing houses, look a little 
bit like that. But look at that sign in the front yard, for sale, not 
by owner, but by government, and that is what we are talking about 
here. That is exactly what the gentlewoman from Ohio was describing in 
her district, and this is what the people, quite frankly, in New 
London, Connecticut, were fighting for.

                              {time}  2045

  As I said a little earlier, a developer who wants to put up a mega 
store, a big box, a new luxury five-star hotel or a four-star 
restaurant, or whatever they want to do, expand that shopping center I 
think we were hearing about earlier, let them do it and let them buy 
what property they can buy. If a price is offered that is attractive 
enough, you will have plenty of willing sellers.
  And if you have one or two that are unwilling, for the reasons the 
gentlewoman was describing, I think she pointed out a gentleman 82 
years old, been married 50 years, lost his wife, been in the home their 
whole married life, let some creative architect figure out a way to 
build around that home and still have an attractive development. It can 
be done, no question about that, Mr. Speaker.
  This next poster, my colleagues, I think is the most important of the 
three. Because while I have emphasized that under this new expanded 
ruling of this activist court, this 5-4 decision, that a person's home, 
where they have raised their children and maybe even their 
grandchildren and lost their spouse, can be taken for this expanded so-
called public use called economic development, bigger tax base, more 
bucks, or the small business I described, the little bakery.
  But look at this, at this poster, this slide. You recognize it. That 
is a church. It could just as well be a mosque or a synagogue. A place 
of worship basically is what it is. Guess how much taxes God pays to 
the local government? None. None.
  So if we allow this decision to stand, there will be plenty of 
incentive to take a small business or a home where the property taxes 
are not enough. You know, if it were a bigger home and it had 5,000 
square feet instead of 2,000 square feet, you could raise the tax base, 
and if it were a business. But it is paying some taxes. There is 
revenue, hopefully a profit. These small business owners are definitely 
taxed, and that tax goes to support the local community.
  So if there is an incentive to take their property when there is a 
tax base, think about what the incentive is going to be for the local 
government to take God's property, where there is no tax base. It is 
tax free. We cannot allow that to happen, Mr. Speaker.
  I know my colleagues on both sides of the aisle understand this. I 
know it from the fact that I brought a resolution to this House floor 
shortly after June 23, and we had Members on both sides of the aisle 
running to the voting machine to punch that green light expressing 
their outrage over this decision. So it is certainly not a partisan 
outrage. We are all upset about it.
  This week we intend to do something about it. Indeed, to take God's 
property so we can put in some high-tax-paying business, restaurant, 
hotel for the purposes of increasing that tax base. Then you say, oh 
yes, but this is for the public good because we are going to have money 
to build more parks and recreation facilities. Indeed. Indeed.
  My colleagues, I mentioned the facts in the New London case, and I 
will not go into that in any more detail, but listen to some of the 
arguments in that case. The residents, the petitioners, argued the 
condemnation by the City of New London constituted a violation of the 
fifth amendment's public use provision: Nor shall private property be 
taken for public use without just compensation. The judge from Texas 
talked about that. The gentlewoman from Ohio and the gentlewoman from 
Tennessee all talked about that.
  The residents argued that economic development in and of itself does 
not constitute a public use. But the City of New London, the defendants 
in this case, argued that, hey, new jobs, increased tax revenue, that 
is qualification enough for taking as a public use and, therefore, this 
taking did not constitute a violation of the Fifth Amendment. They also 
argued that they were operating in accordance with Connecticut law.
  Well, unfortunately, unfortunately, Mr. Speaker, the majority, five 
of our Supreme Court justices, Justice Stevens, Justice Kennedy, 
Justice Souter, Justice Ginsburg, and Justice Breyer, agreed with the 
City of New London, and the majority opinion focused on a broad, very 
broad interpretation of the term public use in the Fifth Amendment.
  The opinion states that there is no way to distinguish between 
economic development from other types of public use development. The 
majority did not want to second-guess local government. They did not 
want the State and local government to say a particular development 
project is for public use. They are the only final arbiters of what is 
and what is not public use. I think I can say that it was a ridiculous 
majority opinion.
  In the dissenting opinion, Justice O'Connor, Justice Renquist, God 
rest his soul, Justice Scalia, and Justice Thomas cites the majority 
opinion for what it is, an abandonment of over two centuries worth of 
precedent. In the dissenting opinion, Justice O'Connor stresses that 
the term public use is very explicit and that the Founders intended 
that the term public use needed to be there. Justice O'Connor writes 
that the majority's opinion nullifies the term public use, and now 
State and local government can justify any taking of land from one 
individual to another to give to another private party if it presents 
any economic benefit to the tax base or any other aspect of the 
community.

  This, Mr. Speaker, cannot, shall not stand. And I want to take this 
opportunity tonight during the remaining time that we have to pay 
tribute to the sensible chairman, who has great wisdom and a lot of 
common sense, the chairman of the House Judiciary Committee, and I am 
talking about the gentleman from Wisconsin (Mr. Sensenbrenner). He will 
bring to this floor, probably on Thursday of this week, H.R. 4128.
  I would like to take this time to explain the provisions of that 
bill, because it is so very important. In this bill, it will say that 
Congress' power to condition the use of Federal funds will extend to 
prohibiting States and localities from receiving any Federal economic 
development funds for a specified period of time if such entities abuse 
their power of eminent domain, even if only State and local funds are 
used in that abuse of power.
  H.R. 4128 also includes an express private right of action to make 
certain that those suffering injuries from a violation of the bill will 
be allowed access to a State or Federal Court to enforce its 
provisions. It also includes a fee-shifting provision, and listen to 
this, identical to those in other civil rights laws that allows a 
prevailing property owner attorney and expert fees as a part of the 
cost of bringing the litigation to enforce the bill's provision, as it 
should.
  Under H.R. 4128, States and localities will have the clear 
opportunity, we are going to give them a last chance, to cure any 
violation before they lose any Federal economic development funds by 
either returning or replacing the improperly taken property. We are 
giving them a chance to make amends before the hammer falls.
  H.R. 4128 also includes carefully crafted refinements of the 
definition of

[[Page H9459]]

economic development that specifically allows the types of takings that 
prior to Kelo had achieved a consensus as to their appropriateness. I 
want to mention some of these.
  These exceptions include: Exceptions for the transfer of property to 
public ownership, to common carriers and public utilities, and for 
related things like pipelines. I mentioned that earlier.
  The bill also makes reasonable exceptions for the taking of land that 
is being used in a way that constitutes an immediate threat to public 
health and safety. Of course. That is common sense.
  The bill also makes exceptions for the merely incidental use of a 
public building by a private entity, such as a small privately run gift 
shop on the ground floor in a public hospital, or the acquisition of 
abandoned property, and for clearing defective chains of title in which 
no one can be said to really own the property in the first place.
  A good bill, Mr. Speaker. I commend it to my colleagues. H.R. 4128 
was introduced by the gentleman from Wisconsin on October 25 of this 
year. The bill was reported from the Judiciary Committee by a vote of 
27 to 3 on October 27, 2005; and I can assure my colleagues that there 
are not 27 Republican Members of the Judiciary Committee. We have a 
majority, yes, but a narrow majority. So, clearly, this bill has 
strong, strong bipartisan support.
  Mr. Speaker, in conclusion, this time that we have taken to talk 
tonight about this situation of the abuse of the power of eminent 
domain is so critical. It is so critical, and this bill is so 
important. We need balance. Certainly we need economic development. We 
need to develop blighted areas in our cities across these States, but 
we can do it in the right way. And we do not need to violate someone's 
constitutional and God-given rights of life, liberty and property.
  I hope that we have in this time, Mr. Speaker, made a strong case for 
this. I know my colleagues who spoke earlier spoke well, spoke 
eloquently, and I am deeply appreciative of their spending a little of 
their evening tonight to discuss such an important issue. We look 
forward to Thursday. We look forward to the passage of H.R. 4128 to 
restore the natural and constitutional right to property.

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