Today on the Senate floor, Sen. John Cornyn (R-TX) introduced legislation that would
sharply curtail the effect of the Supreme Court's decision last week in
Kelo v. New London regarding the takings clause and eminent domain property seizures. As pretty much anyone who's been following along with the discussion here, most Kossacks felt sputtering outrage at the decision, despite the facts that it was the four most conservative justices who were in dissent and the decision was seen as a defeat for those private interests who were hoping to deal a crippling blow against zoning and environmental land-use regulations.
Well, folks, one of the most right-wing senators out there is willing to come to your rescue.
When most readers here find themselves in agreement with Rehnquist, Scalia, Thomas, and now Cornyn, the question has to be asked: What side of the issue is really the best one to advance our interests?
More below.
Quoting from Sen. Cornyn's
press release:
U.S. Sen. John Cornyn, a member of the Constitution, Civil Rights and Property Rights subcommittee, introduced legislation Monday in response to a controversial ruling by the United States Supreme Court in Kelo v. City of New London. In a 5-4 decision, the Court held that government may seize the home, small business, or other private property of one owner and transfer that same property to another private owner, simply by concluding that such a transfer would benefit the community through increased economic development. The Cornyn legislation would prohibit such transfers of private property, without the owner's consent, if federal funds were used, and
if the transfer was for purposes of economic development rather than public use.
"It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain," Cornyn said. "This legislation would declare Congress's view that the power of eminent domain should be exercised only `for public use,' as guaranteed by the Fifth Amendment, and that this power to seize homes, small businesses, and other private property should be reserved only for true public uses. Most importantly, the power of eminent domain should not be used simply to further private economic development."
The bill, designated S. 1313,
The Protection of Homes, Small Businesses, and Private Property Act of 2005 (not yet available through Thomas or the GPO), contains the following relevant language:
Sec. 3 [...]
(a) In General. -- The power of eminent domain shall be available only for public use.
(b) Public Use. -- In this Act, the term "public use" shall not be construed to include economic development.
(c) Application. -- This Act shall apply to--
(1) all exercises of eminent domain power by the Federal Government; and
(2) all exercises of eminent domain power by State and local government through the use of Federal funds.
Both in the legislation itself and in his
floor remarks, Cornyn cites not only to a letter written by Thomas Jefferson in 1816 (over 7 years after his presidency ended) on the protection of private property rights, but also bizarrely enough -- considering Cornyn's political pedigree -- to the amicus briefs filed by the NAACP and AARP, which noted that "[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."
He then manages to take a swipe at Democrats:
In a way, the Kelo decision at least vindicates supporters of the nomination of Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit. That nomination attracted substantial controversy in some quarters, because of Justice Brown's personal passion for the protection of private property rights. The Kelo decision announced last Thursday demonstrates that her concerns about excessive government interference with property rights is well-founded and well within the mainstream of American jurisprudence.
Nothing from Cornyn makes it entirely clear what the Constitutional basis for the legislation is, although as Lyle Denniston pointed out at
SCOTUSblog, "it appears that part of it is based upon the Necessary and Proper Clause, some notion of federal police power, and, to a degree, the Commerce Clause, and part of it is based upon the Spending Clause." Even if the bill were to make it all the way through to enactment, it would surely be challenged before it could ever take effect, throwing the issue once again back to the courts.
To me, all this makes me rather more inclined to believe that the result in Kelo may not have been the outright disaster that so many portrayed it to be. Thoughts, anyone?