Kelo LTE
Dear Editor:
In Kelo vs. New London, the U.S. Supreme Court recently ruled that people can legally be forced from their homes and their property can be transferred to private developers who might convert the property to more profitable uses.
- Text of the decision (.pdf file) is here. (415 KB )
As shocking as this is, the Court’s ruling is based on legal precedent. The Court’s majority opinion documents the very real incremental erosion over the years of the Supreme Court’s respect for private property. The cited precedents explain how the words “public use” in the Fifth Amendment have gradually come to mean “public purpose”, how economic development has come to be an accepted “public purpose”, and how this purpose can be served by seizing and transferring private property to other private owners.
The result of this long string of incremental intrusions on the sanctity of private property is that it is now legally acceptable for local governments to bulldoze people’s homes and transfer ownership of their property to private developers.
But it is even worse than that. The majority opinion also cited precedent decisions that establish even “spiritual” and “esthetic” considerations, including “beauty”, and “balance”, as justifications for seizure of private property and transfer to other private owners. Other cited cases establish social goals, such as “reducing the concentration of land ownership”, and economic goals, such as eliminating barriers to entry and promoting competition, as sufficient justifications for forced transfer of private property to new owners.
In her dissenting opinion, Justice O’Conner says “all private property is now vulnerable to being taken and transferred to another private owner”, and that after this decision, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
In his own dissenting opinion, Justice Thomas adds, “Something has gone seriously awry with this Court’s interpretation of the Constitution,” and “the Court has erased the Public Use Clause from our Constitution” and has abdicated its responsibility to interpret the Fifth Amendment according to its original meaning. He laments the “erosion over time” of the Fifth Amendment’s protection of property and describes the rationale for the “Kelo” decision as “misguided lines of precedent” based on a series of flawed decisions involving inadequate analysis and questionable application of precedents, which has resulted in a gradual but now complete destruction of the original meaning of the Fifth Amendment’s takings clause.
Regardless of this dissent, “Kelo” is now the law of the land. According to the Institute for Justice, which litigated and lost this case, “the ruling has emboldened governments and developers seeking to take property from home and small business owners.” We must also consider the possibility that it may similarly embolden certain conservation groups who might like to see our property taken for greenbelts, or for their versions of habitat or stream protection.
The highest court in the land has made it clear that it will not defend our property; that it is up to State and local governments to make these decisions. This makes it more important than ever that we protect private property rights locally. Since the Supreme Court has chosen to defer to local rulings on these important issues, it is our responsibility to see that our local jurisdictions provide us the necessary protections, and not let us down like the city of New London let down the folks now being evicted from their homes.
This means our General Plan, the closest thing Napa County has to a constitution, and now being updated, must include some protection for property rights. As our County government’s guiding document, our General Plan should be a balanced document that reflects all the important values of our community, not just our "green" values. Protection of private property is clearly an important community value that deserves inclusion.
Historically, private property rights have been ignored in our General Plan based on the assumption that State and Federal protections are adequate. However, in light of the Kelo decision, this is no longer a safe bet, so we must speak up and encourage our County Supervisors to act locally to protect private property by including property rights in the new General Plan. If New London citizens had done that, they would not be losing their homes now.
In addition to speaking up individually, we can speak through our various industry advocacy groups, chambers of commerce, and service clubs that represent us and whose leaders have considerable influence with the Board of Supervisors. Contact those organization leaders and ask that their organization join Napa Valley Land Stewards Alliance in supporting the inclusion of respect for private property rights in the new County General Plan.
For more information on this issue or for free membership in Napa Valley Land Stewards Alliance, visit www.landstewards.org.
George Bachich, president
Napa Valley Land Stewards Alliance