[Congressional Record Volume 152, Number 83 (Friday, June 23, 2006)]
[Senate]
[Page S6449]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE KELO DECISION

  Mr. CORNYN. Mr. President, the main reason I wanted to come to the 
floor today was to talk about the important issue of private property 
rights. Today marks the 1-year anniversary of one of the most 
controversial decisions ever handed down by the U.S. Supreme Court, and 
that is the case of Kelo v. the City of New London. In that decision, 
the Court held by a 5-to-4 vote that the government may seize private 
property, whether it be a home or small business or other private 
property, for the purpose--not of public good but, rather, to transfer 
that same property to another private owner simply because the transfer 
would create an increased economic benefit to that community.
  What made this such a profoundly alarming decision was that it 
represented a radical departure both from what the Constitution says--
that the power of government to condemn private property should be used 
only for public use--and it represented a radical departure from the 
decisions handed down interpreting that constitutional provision over 
the last 200 years.
  After all, protection of homes and small businesses and other private 
property against government seizure or unreasonable government 
interference is a fundamental principle of American life and really a 
distinctive aspect of our form of government. Indeed, private property 
rights rank among the most important rights outlined by the Founding 
Fathers when this country was created. Thomas Jefferson wrote that the 
protection of such rights is:

        . . . the first principle of association, ``the guarantee 
     to every one of a free exercise of his industry, and the 
     fruits acquired by it.''

  These protections were enshrined in the fifth amendment to the U.S. 
Constitution which specifically provides that private property shall 
not ``be taken for public use without just compensation.'' The fifth 
amendment thus provides an essential guarantee of liberty against the 
abuse of power by eminent domain by permitting the government to seize 
private property only for ``public use'' and only upon paying just 
compensation.

  The Court's decision in Kelo was sharply criticized by Justice Sandra 
Day O'Connor in her dissent, in which she wrote:

       [The Court] effectively [has] . . . deleted the words ``for 
     public use'' from the Takings Clause of the fifth amendment 
     and thereby ``refuse[d] to enforce properly the Federal 
     Constitution.''

  Under the Court's decision in Kelo, Justice O'Connor warns:

        . . . the specter of condemnation hangs over all property. 
     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.

  She further warns that, under Kelo, under the Supreme Court's 
decision just 1 year ago ``any property may now be taken for the 
benefit of another private party,'' and she said, ``the fallout from 
this decision will not be random.''
  Indeed, as noted in a friend-of-the-court brief filed by the National 
Association for the Advancement of Colored People and the AARP and 
other organizations:

       [a]bsent a true public use requirement, the takings power 
     will be employed more frequently. The takings that result 
     will disproportionately affect and harm the economically 
     disadvantaged and, in particular, racial and ethnic 
     minorities and the elderly.

  Again, that is the brief of the National Association for the 
Advancement of Colored People and AARP and others.
  Suffice it to say that the Kelo decision was a disappointment. What I 
find particularly troubling is that the Kelo case is just one of many 
examples of the abuse of the power of eminent domain throughout our 
Nation. Its use for private development is now widespread. The 
Institute for Justice has documented more than 10,000 properties either 
seized or threatened with condemnation for private development during 
the 5-year period between 1998 and 2002. Despite the fact that so many 
abuses of that power were already occurring, the Kelo decision is 
particularly alarming, and local governments, the condemning 
authorities most often, have become further emboldened to take property 
for private development.
  As this pattern has continued elsewhere, courts very quickly used 
this decision to reject challenges by owners to the taking of their 
property for other private parties. In 2005, for example, a court in 
Missouri relied upon Kelo in reluctantly upholding the taking of a home 
so that a shopping mall can be built. As the judge commented:

       The United States Supreme Court has denied the Alamo 
     reinforcements. Perhaps the people will clip the wings of 
     eminent domain in Missouri, but today in Missouri it soars 
     and devours.

  I firmly believe legislative action is appropriate and necessary, and 
I am not alone in that belief. Several State legislatures have taken 
immediate action. Indeed, my home State of Texas passed legislation 
that was signed into law by the Governor last summer that protects 
private property from seizure for purposes of economic development. But 
it is also necessary and appropriate that Congress take action 
consistent with our authority under the Constitution to restore the 
vital protections of the fifth amendment. That is why the week after 
the Court handed down its decision I introduced S. 1313 entitled ``the 
Protection of Homes, Small Businesses, and Private Property Act of 
2005.'' I am delighted that other Senators have joined in that in broad 
and bipartisan support, including the immediate support shortly after 
it was filed of the Senator from Florida, Mr. Bill Nelson.
  Today I am happy to report that a total of 31 of our colleagues have 
joined me as cosponsors of this important bill. This bill would ensure 
that the power of eminent domain is exercised only for public uses, 
consistent with and guaranteed by the fifth amendment of the 
Constitution. Most important, though, it would make sure the power of 
eminent domain would not simply be used to further private economic 
development interests.
  The act would apply the standard to two areas of government action 
which are clearly within Congress's authority to regulate: No. 1, all 
exercises of the power of eminent domain by the Federal Government 
itself; and No. 2, all exercises of the power of eminent domain by 
State and local governments using Federal funds.
  While we work to protect private property rights, we are mindful that 
the language we craft could have far-reaching implications. There is no 
question that where appropriate, eminent domain can play an important 
role in ensuring that true public uses are preserved. But now, just 1 
year after the Supreme Court shut the door on Suzette Kelo and her 
fellow homeowners in New London, CT, it is imperative that Congress act 
soon to ensure that private property remains free from the long arm of 
government so that no American will have to worry about the Federal 
Government being involved in taking their private property for private 
development.
  Chairman Specter of the Senate Judiciary Committee, on which I am 
proud to serve, is working with me on legislation that I hope he will 
choose to move soon through the committee. I look forward to working 
with him and my other colleagues to develop a solution that reaffirms 
our commitment to the protection of private property rights, one that 
will help stem the tide of egregious abuses of private property rights 
that we have seen throughout the Nation by the illegitimate use of the 
power of eminent domain.
  I yield the floor.
  The PRESIDENT pro tempore. The Democratic leader is recognized.

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