Ken Cuccinelli is a state senator here in Virginia. He's not mine, but I wish he was.
By now you’ve heard about the Supreme Court’s 5-4 ruling yesterday in Kelo v. City of New London that, as Justice Thomas says, essentially erases the words “public use” from the 5th Amendment of the Constitution. The deletion of those two words only serves as the latest example of a judiciary intent on ever more expansive and powerful government, all at the expense of individual citizens.
Perhaps even more troubling, it reflects the majority’s assumption that private property rights do not really exist. Rather, individuals are simply “trustees” of the land, until the government decides that its transfer to another “trustee” would better serve its version of the “public good.” This ruling shifts a massive amount of power from citizens to the government and opens the door wide to increasing abuse of that power.
The Justices are charged with the interpretation of the Constitution. In this case, they were confronted with a prohibition: “nor shall private property be taken for public use, without just compensation,” and they have effectively re-written it as a grant of authority for local governments to redistribute private property according to any plan that any local government authorities believe to be economically beneficial. You read that right, the Supreme Court of the United States has sanctioned the redistribution of property. Who usually sanctions the redistribution of property? Well, let's see, there's the FMLN in Nicaragua, the Communist Party of the Soviet Union, Karl Marx was a big fan... what's wrong with this picture?
As conservatives, we know that “words mean things” and we invest some confidence in the knowledge that the Framers of the Constitution intended their words to convey a specific set of ideas. Liberals on the Court not only reject the Founders’ confidence that private property rights form the basis for a free society, but they demonstrate once again that they feel no obligation to the actual text of the Constitution.
Yesterday’s decision has tragic consequences. Traditionally, eminent domain authority has meant that government could buy property from unwilling sellers for projects that would be directly used by or for the public, such as for roads, military bases, and even parks (which goes too far for my Constitutional tastes). No longer, as Justice O’Conner noted in her dissent, “Any property may now be taken for the benefit of another private party; but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with few resources to those with more.” Gerry Connolly must be licking his chops (for non-Northern Virginians, Connolly is our local mean, nasty, liberal Board of Supervisors Chairman).
Here in Fairfax, Gerry Connolly is already using the law of zoning for political ends. He is pushing condos and apartments in various parts of the County for the purpose of bringing disproportionate numbers of Democrats into the County. Well, thanks to a bare majority of the Supreme Court, if some preacher is preaching a message from his pulpit that Gerry doesn't like, now he can just take the church by eminent domain! Why? Because the church is a non-profit and so it does not pay taxes, so the County can take that property and sell it off to one of Connolly's many $199 contributors (you know who I'm talking about...) so they can build more condos, which do pay taxes! Those new taxes are a "public use" according to the Supreme Court. Rarely does one see the Supreme Court open up such an incredible opportunity for government abuse as they have done with their ruling in Kelo.
What About Virginia?
Given the fact that the U.S. Supreme Court has gutted the 5th Amendment of the U.S. Constitution (protecting property rights), property owners must now look for protection from their State Constitutions.
During this year’s General Assembly session, I introduced legislation which would have prevented Virginia localities from abusing their eminent domain authority, as happened in Kelo. Under the law I proposed, government could not condemn one person’s property in order to transfer it to another (favored) private entity. This legislation was killed on a 6-9 vote in committee, but it is now clearer than ever why we need to specifically protect private property owners under Virginia law.
The majority opinion in Kelo says that individual states may choose to restrict their own exercise of eminent domain. Like the 5th Amendment, Article I, Section 11 of the Virginia Constitution protects citizens by limiting the exercise of eminent domain to “public use.” It is now obvious that we in Virginia must act in the next General Assembly session to define “public use” and secure the rights of private property owners. If we do not, our poorest communities stand to suffer the most, and our rights as well as our homes may be imperiled by our own local governments. I plan to reintroduce this legislation next year and I would like to hear from you if you think that this should be a priority for Republicans in the General Assembly.
Compass Quote Contest
I thought I would stay on topic for our quote in today’s Compass. Email me for an honorable mention in the next Compass if you know who said, “So great is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community.”
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