[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.
____________________