Tom Bell Proposes a Kelo Amendment:

In an earlier post, I noted Congresswoman Nancy Pelosi's argument that if people don't like Kelo, they should propose a constitutional amendment.

Here's one, proposed by Tom Bell.

(I express no opinion on whether this would work or would be politically feasible.)

Good analysis and a good starting point. It doesn't quite work, though, because I don't see how the constitutionality of a taking can hinge on what the government does with it later. You also have the problem of what happens if the intended public use doesn't work out - the government is forbidden to sell the property, and the original owner may not want it back any longer, so it just sits there.

What if a private party gets the right to receive rents and profits from the land? Is that an "interest" in real property? (This seems like the right blog to ask that question.)

Are quasi-governmental entities an issue? Park authorities, transit authorities, parking authorities? If the government builds a football stadium, does it make sense to say that they can't privatize the parking lot? There seems to be a larger class of developments that would be mostly public but would have some private interests involved.

The more economically-minded side of me wonders if it would help to require that any interest to be transferred to a private party be subject to a public bidding process. This would eliminate some of the more egregious abuses.
7.12.2005 12:48pm
Juliean Galak (mail):
The parking lot issue is a good point - what about granting leasehold interests for less than the entire property? It seems that would violate the "any interest" provision of the amendment.

Under the proposed amendment, it would be permissible for a gov't to seize property to build, say, a courthouse. But if the court then leased a small part of the building to a private company that would sell drinks and snacks, it would seem to violate the amendment.

Similarly, if a gov't seized property to build an office building, and then built a building larger than they needed at that moment (perhaps with a view to future need), they couldn't lease out the "extra" space and thus generate some revenue.
7.12.2005 1:11pm
rbj (mail):
It would seem that the "any interest" phrase would preclude a football stadium (leased to a private organization such as the NY Giants) or just leasing out the parking lot. Of course the S.Ct. at times has been creative in its interpretation of various constitutional phrases. Coming up with the right turn of words here is tricky.

Still, this is an eminently more worthy subject for an amendment than flag-burning.
7.12.2005 1:30pm
Andrew Kvochick (mail):
They should just insert the words "for public use" after "nor shall private property be taken"...oh, wait.
7.12.2005 1:47pm
sonicfrog (mail) (www):
Can anyone point me to a resource that lists all the decisions made by a SC Justice, such as Clairence Thomas or Sandra Day O'Conner? If I get involved in a convo on Chief Justice replacement, I want to know the record of the person I favor or reject.

PS. God I love this blog, and I have linked it to mine. Thank you Eugene. In my next life, or the one after that, I WILL be a lawyer!
7.12.2005 2:06pm
MP (mail) (www):
It appears that one source of distraction in this debate is the fact that a private entity is involved in the taking. Is that really a primary factor in defining "public use"? Even Thomas's dissent referred to the Mill Acts, in which private actors were the receivers of the property being taken. What about private toll roads? Is the simple fact that they are owned and operated by a private entity the determining factor in saying that they are eligible to use ED? Doesn't this leave us preferencing government run facilities, simply because if they weren't government run, they wouldn't be built?

Instead of focusing on the entities involved in an ED taking, the focus should be on the word Use. Essentially, and ED taking should result in having the property be allocated specifically for the Use by the general public. This means either the government must own and manage the property (government being inherently public), or the property must be deeded in such a way that it is clear that the general public's use of the property is the primary influence on how it is developed. This pretty clearly excludes private residences and corporate office spaces, but does not exclude malls and gas stations. Like it or not however, retail establishments are clearly public use. If you try to excise private entities from public use, you might as well eliminate ED altogether.
7.12.2005 2:58pm
MP (mail) (www):
are eligible to use ED

Sorry...are not eligible to use ED
7.12.2005 2:59pm
Hattio (mail):
Just a quick point. The article by Tom Bell that is linked to claims that Kelo violates "...the plain meaning of the Fifth Amendment." I've heard many others say this.
However, if you look at the Fifth Amendment, it says absolutely nothing about takings which are not for a public use. It merely says that takings which are for a public use have to be justly compensated. Don't get me wrong, I'm not arguing that Kelo doesn't violate original intent (though, I'm not sure it does). However, original intent and plain meaning are not the same thing, and Kelo clearly does not violate the plain meaning. Can we let it rest.
7.12.2005 10:27pm
markm (mail):
How about attacking Kelo from a different direction, namely the claim that increased tax revenue is a "public benefit"? This implies that the function of citizens is to serve their government, while this country was founded on the premise that it should be the other way around.
7.13.2005 6:04pm