Federalism Is Alive: The Partial Triumph of Counter-Kelo
By Marion Edwyn Harrison, Esq. (11/09/06)
Something happened yesterday that won’t receive much publicity.
How far can State and local governments grab homeowners’ or other landowners’ property to promote private development or other uses which few folk would consider a public use? After the Supreme Court of the United States decision in Susette Kelo et al v City of London, Connecticut et al (June 25, 2005) this column twice addressed ramifications. The columns follow.
There was emphasis, and hope, that federalism would prevail: The States of the Union would do their duty, changing their laws if necessary to accord basic defenses against unbridled sequestrations. Too many problems which by right and tradition - and sometimes by mandate of the Constitution - ought to be handled within the States gravitate to, or sometimes are grabbed by, the Federal Government.
On September 30, 2006 the Louisiana electorate voted to amend its constitution. Yesterday twelve States had ballot propositions in varying degrees seeking to circumscribe the reasons why a governmental entity could take private property. Voters in Arizona, Florida, Georgia, Michigan, Nevada, North Dakota, Oregon and South Carolina approved these limitations. New Hampshire results are not yet available. California, Idaho and Washington voters rejected their propositions. Some of these changes in law will be more effective than others. The point is twofold: Numerous voters at the State, not Federal, level are asserting their rights; federalism has seen an upsurge.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation
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The Free Congress Commentary
The Case of the Iniquitous Infinitive: “To Kelo”
By Marion Edwyn Harrison, Esq.
March 2, 2006
The sweeping headlines and sometimes mindless but often repetitious articles, columns, editorials and press releases appear everywhere and the infinitive “to Kelo” has become commonplace. Too few writers - screamers, might one say? - address the problem, much less the exclusive route to a solution.
One need not be a stickler for federalism, sometimes referred to as states’ rights, to recognize that the risk created - more correctly, sustained - by the Supreme Court of the United States in Susette Kelo et al v City of London, Connecticut et al (June 25, 2005) can be abated in any State of the Union in which it exists by corrective State legislation. To avoid repetition, the July 22, 2005 NOTABLE NEWS NOW, discussing the background, follows.
Suffice it to say that in those States which have sweeping seizure, or eminent domain, jurisprudence the risk of seizure for a nongovernmental purpose is real, undoubtedly of concern to many of the estimated two-thirds of Americans who own their homes.
The first State to respond completely is South Dakota. By a 71 - 1 margin, the South Dakota House passed a bill to prohibit the State from utilizing its eminent-domain power to take private property for private economic development; the South Dakota Senate unanimously approved the bill; the Governor signed it into law. Not every State has sweeping condemnation power. However, most either do or arguably do, so remedial legislation and/or a State constitutional amendment is essential. Most legislatures are in session. Voter initiatives are under way in Arizona, California, Colorado, Missouri, Montana and Nevada. State Constitutional amendments are in varying degrees of progress in Alabama, Florida, Georgia, New Hampshire, Oklahoma and South Carolina. The Virginia House of Delegates unanimously approved legislation, with approval almost certain in the Senate and signature by the Governor. The foregoing enumeration may not be fully current. The point is that many, and apparently most, States which have, or may have, unduly sweeping condemnation authority are moving to limit that authority.
The issue in Pennsylvania may be complicated by a State intermediate appellate decision invalidating the taking of a private home by the Philadelphia Redevelopment Authority to transfer title to a religious group to build a school in a “blighted” neighborhood. The decision turns on a church - state issue and, therefore, likely would not be held germane to the basic issue of authority for a taking.
Judging by queries Free Congress Foundation has received, as well as newsprint and probably Internet content, some good people evidently continue not to understand that in those States in which condemnation authority is too broad the solution to the problem strictly is within the State and according to State procedures. Congress is not part of the act (although activity by some Members of Congress might suggest Federal jurisdiction). Likewise, the Federal Judiciary is not part of the act. “To Kelo” one’s home, when lawful at all, is a matter of State, not Federal, law. To those of us who believe in federalism as the Framers intended it, the opposite of Washington Big Government that alone would be cause for State, not Federal, remedial action.
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The Free Congress Commentary
From Kelo to Consternation – But Back to the States
By Marion Edwyn Harrison, Esq.
July 22, 2005
The five-four decision of the Supreme Court of the United States in Susette Kelo et al v City of New London, Connecticut et al (June 23, 2005) well could trigger the terrifying risk to private property which Justice Sandra Day O’Connor envisions in her Dissent (joined by the Chief Justice and Justices Antonin Scalia and Clarence Thomas):
“ . . . Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner . . . who will use it in a way that the legislature deems more beneficial to the public . . .”
In 1798 Justice Chase wrote, as Justice O’Connor quotes:
“ . . . An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact . . . cannot be considered a rightful exercise of legislature authority . . . [A] law that takes property from A. and gives it to B. . . . is against all reason and justice . . .”
Or, as that monumental English authority William Blackstone wrote, as quoted by Justice Thomas:
“ . . . [T]he law of this land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property . . .”
Alas, the Majority in Kelo did not see it that way. Thus, State law permitting, almost any private property is at risk if the cognizant governing body, nobly intentioned city council or otherwise, decides that a shopping center or any other private use is more beneficial to more people (probably conspicuously including tax collectors) than one’s humble home. Not surprisingly, those politicians whose constituents disproportionately dwell in undesirable housing, just as those whose constituents own their modest-or-better homes, are in union that the Kelo ruling bespeaks all kinds of potential trouble.
There is, however, a solution. It’s too common to blame trouble upon a judicial decision when so often the unwanted decision derives from statutory authority or the absence of a statutory prohibition. A State of the Union which lacks adequate protection for private property can amend its statutes – if need be, its State constitution – to prevent a taking of private property for an allegedly superior private purpose. The problem many times is not the Feds; it is the States. Connecticut law could have prevented the taking in Kelo. Applying Connecticut law, the Supreme Court of Connecticut upheld the taking. The Connecticut Legislature can change that law.
Just an example: Already in Virginia the Speaker of the House of Delegates, William J. Howell, is organizing a study to determine whether Virginia law adequately would prevent a Kelo type of taking. Virginia has gubernatorial elections this year. Both Democratic and Republican candidates for Governor, Lieutenant Governor and Attorney General are on the bandwagon. Every State in which the law is less than clear, or which, like Connecticut, permits a governmental body to seize private property not for a traditional public purpose but for a real or imagined private economic improvement, can clarify its law.
The Fifth Amendment, which the Supreme Court, in 1897, applied to the States, is supposed to limit a public taking of private property to “public use . . .” However unpersuasive the Kelo Majority’s reasoning may be (and this writer, 51+ years at the Bar, thinks it unpersuasive), the Supreme Court of the United States would not have been in a predicament in the first place if Connecticut law clearly had prevented such an abomination and, applying Connecticut law, the Supreme Court of Connecticut had not sustained the taking.
Concerned citizens, whatever their economic motivation, should look to their State legislatures. Criticism of the Majority’s Kelo reasoning in the context of Connecticut law may provide copy for talk shows and media generally – and, of course, for law reviews – but the solution is legislative, not judicial.
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