Good afternoon. My name is Matt Brouillette, and I am president & CEO of the Commonwealth Foundation, a public policy research and educational institute based in Harrisburg. We develop and advance public policy grounded in the founding principles of limited constitutional government, political and economic freedom, and personal responsibility for one’s actions.
The issue of eminent domain is important to us organizationally because the right to property is one of our inalienable rights as human beings, particularly as Americans. And as David has just recapped, the U.S. Supreme Court decision in Kelo vs. New London dramatically undermined our private property rights.
Prior to Kelo, governments were much more hesitant to seize private property from average citizens to give to another private individual or group. Now, all pretenses have vanished. Indeed, the abuse and misuse of eminent domain can now take place right out in the open – with the blessing of the nation’s High Court.
It wasn’t me – it was Justice O’Connor who stated in her dissenting opinion:
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.
Unfortunately, the Kelo decision represents a direct attack on one of the foundational principles upon which our country was built – the right to private property.
Harvard professor of history Richard Pipes says in his book, Property and Freedom, that “Property … provides the key to the emergence of political and legal institutions that guarantee liberty.”
The most important and critical point to understand, however, is that while the ownership of property is possible without liberty, liberty is impossible without property.
The founders of our nation and framers of the U.S. Constitution clearly understood this non-severable relationship. In fact, they believed that property rights were analogous and equivalent to other human rights. In fact, at times they insisted that the right to acquire and possess property was in some ways the MOST important of individual rights.
Their beliefs on this issue could not be more relevant today—and are, specifically, instructive on the topic of eminent domain. So I want to further look this issue from a historical perspective because, I would argue, it was our founders’ high esteem for private property that laid the foundation for the prosperity our nation would experience to an extent never known in the world before.
James Madison, writing in Federalist #54, asserted that “Government is instituted no less for the protection of the property than of the persons of individuals.” He later elaborated that property rights are as important as personal rights because the two are intimately connected.
Madison argued that the right to labor and to acquire property is itself an important personal right entitled to government protection. And he held firm that property acquired through the exercise of this personal right to labor is, by derivation, entitled to equal government protection.
In his “Address at the Virginia Convention,” Madison said:
“It is sufficiently obvious that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right.”
The recognition of the intimate relationship between personal rights and property rights was just as strong in Pennsylvania as it was in Virginia. The very first section of Pennsylvania’s Constitution of 1776 declared:
“That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”
Section 8 of that same constitution takes it a step further, asserting
“That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man’s property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives.”
To our founding fathers – those men who fought and died for our “natural, inherent and inalienable rights” – the extraordinary power of eminent domain currently granted to government was explicitly prohibited. Indeed, Kelo’s granting of unlimited governmental power to take private property would have been unthinkable to our 18th-century founders.
Today, not only does government liberally exercise its power to seize property without the owner’s consent, but the “public use” constraint has been thrown to the wind. The framers, of course, were thinking of “public use” only in terms of roads, post offices, and other government facilities – the kinds of things that, in theory, all people use.
Now, with the Kelo decision, the term “public use” has been stretched beyond recognition. If family homes are taken for a strip mall, it is said that this is a public use because the new function will provide jobs and bring in higher tax revenues that can be spent for the public’s benefit. The result is that citizens’ property rights no longer stand in the way of some politicians’ idea of economic progress or a wealthy developer’s plans.
The good news, however, is that the Supreme Court has left the door open for the General Assembly to end these flagrant abuses and misuses of eminent domain. States now have the opportunity to restore government as the protector—rather than the violator—of private property.
Let me be clear. I am not advocating for the complete elimination of eminent domain. Rather, I believe that eminent domain must be strictly constrained to its proper and constitutionally intended uses.
In fact, the silver lining in Kelo is that it has reminded us once again about the important relationship between our inherent and inalienable right to private property and the blessings of liberty, justice, peace, and prosperity that emanate from it.
Next week, it is expected that the Pennsylvania General Assembly will be moving to re-tip the balance of power back to the citizens of this commonwealth by reforming the power of eminent domain. Only then can we begin to preserve and repair the foundation upon which the freest, most prosperous nation in history was built.