[Congressional Record Volume 152, Number 109 (Thursday, September 7, 2006)]
[Senate]
[Pages S9133-S9134]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. INHOFE:
  S. 3873. A bill to protect private property rights; read the first 
time.
  Mr. INHOFE: Mr. President, Alexander Hamilton declared:

       The sacred rights of mankind are not to be rummaged for, 
     among old parchments, or musty records. They are written, as 
     with a sun beam in the whole volume of human nature, by the 
     hand of the divinity itself; and can never be erased or 
     obscured by moral power.

  I believe, and I speak on behalf of the people of Oklahoma, in the 
right to own private property, and I believe in the right to enjoy it 
and not be harassed, especially by the government.
  There are three issues that the Private Property Protection Act of 
2006 that I am introducing today addresses: it protects the right to 
own and enjoy private property, one of our Government's core purposes; 
it directly confronts the Supreme Court's decision in Kelo v. City of 
New London, Connecticut, which allows local governments to take private 
property for economic reasons, by forcing the Court to reign in its 
incessant judicial activism and return to the true intent of the fifth 
amendment; it limits government intervention into the private market.
  However, my bill does not attempt to encroach on a State's right to 
conduct business and levy taxes; it simply makes clear that the 
National Government will not fund these blatant abuses of private 
property. There is no violation of State sovereignty.
  The Constitution is not really an allocation of Government-determined 
rights to the people as much as it is a limitation on the Government 
from interfering with our inherent rights. The presumption is that 
people are ``endowed by their Creator with certain unalienable rights'' 
and that the Government's fundamental role is to protect those rights.
  Sometimes a person's rights do have to be limited in order to protect 
the rights of everyone else. But there must be a strong reason to 
restrict or limit those rights, and even when this is done, the rights 
are still there, they do not just disappear.
  Ask any elementary school child what the main reason for the 
Revolutionary War was and they will probably respond, ``Taxation 
without Representation!'' Consider the spirit of the Declaration of 
Independence, and then see what is going on with eminent domain today. 
It does not go together. I can only imagine what the Founding Fathers 
and colonists would think if they read the Supreme Court's Kelo 
decision. There is a huge rift in the intention of eminent domain at 
our Nation's founding and today. Taking away rights, especially 
property rights, is a serious matter, but what is worse, thanks to 
Kelo, is that a city can now seize a person's land solely for financial 
gain.
  In Kelo, the Supreme Court gave the legal mandate that the ``broad 
reading'' of the takings clause of the fifth amendment includes taking 
from one private citizen and giving it to another as long as the city 
claims an economic benefit. Changing the definition of the fifth 
amendment to mean ``more tax dollars for the city,'' is not only 
incongruous, it is outrageous.
  This philosophy comes out of a socialistic presumption that all 
property really belongs to the State, that the State is the true 
landlord, and that people are allowed to use the land until the State 
gets a better offer. The Supreme Court is opening up the gate of 
opportunity to these cities essentially saying: ``Hey, if you need 
money, just condemn some property . . . bulldoze the houses and sell 
the land to a giant retail store or factory that will generate lots of 
tax dollars.''
  Once again, the courts have taken the Constitution and twisted it, 
actively and willfully pursuing their own radical and elitist policy, 
usurping the will of the people, and their elected representatives. The 
Supreme Court's Kelo decision is the pinnacle of a mutation of its 
takings clause jurisprudence, and essentially extends a government's 
condemnation power to include taking private property and giving it to 
another private party who will raise revenue for a city or town.
  Justice Thomas, in his dissent, quoted renowned legal scholar William 
Blackstone whose ``Commentaries on the Laws of England'' eloquently 
described the authority of the law at the time the fifth amendment was 
drafted: ``The law of the land . . . postpone[s] even public necessity 
to the sacred and inviolable rights of private property.'' Justice 
Thomas continued, agreeing with Justice Sandra Day O'Connor's well-
stated warning taken from her dissenting opinion:

       If such ``economic development'' takings are for a ``public 
     use,'' any taking is, and the Court has erased the Public Use 
     Clause from our Constitution.

  Justice O'Connor also explained that historically, the ``Government 
may compel an individual to forfeit her property for the public's use, 
but not for the benefit of another private person. This requirement 
promotes fairness as well as security.''
  Professor Bradley Jacob, a constitutional law professor at Regent 
University School of Law, is gravely concerned by the Court's decision 
in Kelo. He observed:

       What the Court ruled in Kelo is not consistent with the 
     Constitution, it is not consistent with the Declaration of 
     Independence, and it is not consistent with the principles of 
     liberty that underlie free Republican government. It was 
     valid only in the eyes of those who accept the idea that the 
     Supreme Court is our national super-legislature, imposing its 
     views of wise social policy on an unwilling nation.

  The Court calls this kind of taking ``economic development.'' I call 
it robbery and wealth redistribution. If the cities are suffering from 
failed economies because of poor decisionmaking, inefficient zoning, 
and financial irresponsibility, that is unfortunate; however, unchecked 
eiminent domain power is not the answer.
  According to economic greats, such as Adam Smith and John Locke, 
there are two types of property: private and public. Property is 
private when others are prevented from using or benefiting from it. It 
is exclusive to the owner. He or she is entitled to the fruits it 
bears. Examples of this are homes, farms, and stores. Conversely, 
public property is property that is opened up and common to the public, 
from which all have equal access to its fruits, and equal access to use 
it and benefit from it. Examples of this are roads, power lines, and 
waterways.
  The fifth amendment recognizes the Government's power to take private 
property when necessary, and open it up to the public, for true public 
use. The idea of interpreting the fifth amendment in a ``broad'' manner 
to allow, and thus, encourage taking private property from one and 
giving it to another private owner is foreign and hostile to the 
principles that make this nation great.

  I believe that economic development belongs to the private market. 
Condemnation power for economic development will have devastating and 
paralyzing effects on the market. This is extreme artificial 
interference in the market that will only encourage more irresponsible 
decisionmaking by cities.
  When a private citizen steals a person's private property, the victim 
has a cause of action against the culprit to try to right the wrong and 
the State has an interest in prosecuting that wrong as well, as 
stealing is against the law. But what is so dangerous here is that it 
is the State that is facilitating the wrong. My bill will ensure a 
private cause of action for the citizen whose property is taken away 
from him or her by the State for economic development.
  Recognition and protections of the right to own private property is 
the driving force of our Nation and the fuel of the free market. The 
Government should be the staunchest defender of private property, not 
the thief that steals it. My legislation will prevent States that allow 
their cities or other municipal bodies to carry out this type of 
eminent domain, that is, the kind based solely on economic development, 
from receiving Federal economic development funds. I simply do not 
think that we should be funding economic development for those States 
that are

[[Page S9134]]

willing to steal private property from their citizens.
  As Alexis de Tocqueville predicted, the unique private property 
rights in America would set it apart from and above the nations of the 
world, mainly by facilitating a thriving, land-owning middle class, the 
backbone of a successful free market. The Kelo decision is a crippling 
blow to our middle class, and our Constitutional Republic as a whole, 
and must be dealt with immediately.
  I ask my colleagues in this body to stand with me and protect the 
private property rights of Americans across this great land. We owe it 
to the citizens of our States; we owe it to the Constitution and our 
liberty.
                                 ______