LAUREL —
For more than two centuries, the Constitution’s Fifth Amendment imposed a basic limitation on the scope of government’s eminent domain authority, since the “takings” clause of the Amendment was consistently and properly interpreted to prohibit the taking of private property for private use even if just compensation was paid. Government was not permitted to confiscate property from one private individual and transfer it to another; all government takings of private property presupposed an actual public purpose such as highways, schools or courthouses.
However, after the United States Supreme Court’s 2005 decision in Kelo v. City of New London, certain longstanding protections provided by the Fifth Amendment were stripped away. In Kelo, the Court dramatically altered the Constitution’s original understanding by expanding the scope of “public use” to encompass non-traditional and even private uses.
By a vote of 5-4, the Court held that the government’s power of eminent domain may be used to take private property – one’s home, business, farm or church – based on a number of purported justifications, including the possibility of tax revenue generation or even presumably to enhance aesthetics.
In broadly construing the “public use” language of the “takings” clause to encompass any secondary benefits imaginable, private property rights – as traditionally understood – were deemed illusory.
The Court’s decision fashioned the possibility of individuals having their property forcibly conveyed, via the government, to any tax-generating entity, corporate or otherwise, thereby advancing the economic interests of entities with disproportionate power over government affairs.
Of course, had the framers of our Constitution intended the “public use” language to have such sweeping scope, they would have selected a more expansive phrase for inclusion in the Amendment’s text, such as “general welfare.”
Instead, the specifically-chosen “public use” language was more narrowly construed, as it simply embodied the founders’ understanding that ownership of property is a natural and fundamental right.
The republic’s founders obviously recognized property rights as among the most sacred of American liberties, taking up arms against an English system in which the rich and powerful could take whatever property they wanted by utilizing the sovereign’s proposed justification for transfer. They concluded it was their responsibility to protect against the abuses of government, extolling the Constitution as the guarantor of additional security to liberty and property.
Fearing government’s capricious confiscation and subsequent transfer of property, early patriot Arthur Lee wrote in 1775, “The right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” Alexander Hamilton concurred, arguing “one great object of government is the personal protection and the security of property.”
The drafter of the “takings” clause, James Madison, also made his intentions perfectly clear: “A Government is instituted to protect property of every sort. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
Despite their unwavering support of private property, our rights are now being threatened, with the most vulnerable among us bearing the most significant burdens.
Economically disadvantaged communities are less likely to put their lands to the highest and best economical use, making their lands ripe for government taking. Since the poor are, generally speaking, the least politically powerful segment of a community, they generally lack the political force necessary to deter or alter the power of government. They are more likely to suffer the indignity and pain of losing their property, including sentimental possessions such as beloved family land and homes.
But the loss of one’s sentimental possessions, though important, pales in comparison with our collective loss of liberty.
History demonstrates that secure property rights are an indispensable condition for the preservation of freedom, economic prosperity and social harmony.
Accordingly, they must be honorably defended, no matter the offered justification for abolishment.
Since the Kelo decision was handed down by the Court, nine state supreme courts have limited eminent domain powers, and 43 state legislatures have passed greater property rights protections.
And, yet, the State of Mississippi has not taken action to protect its property owners.
As we tread a delicate balance between economic growth and personal liberty, it’s time for us to find a solution, however difficult.
Columns
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Chris McDaniel Photo/File
Mississippi should protect its property owners’ rights
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