Prepared Statement of The Honorable Cliff Stearns

Protecting Property Rights After Kelo

Subcommittee on Commerce, Trade, and Consumer Protection
October 19, 2005

Good afternoon. I welcome this opportunity to learn more about one of the most important Supreme Court decisions in recent memory. Kelo v. City of New London is a decision that has implications for every commercial interest in the country. Kelo also challenges widely held notions about the nature of private property and the power of the government to "take" that property, albeit with due compensation, in the name of economic progress. The economic and social implications of the Supreme Court's current "economic development" analysis, applied in Kelo and somehow derived from the Fifth Amendment's "takings" clause, should concern all consumers in the private property marketplace.

I also must confess, like many Americans, this decision has made me think about my own little piece of the world that perhaps might, in developers' eyes, make an enticing site for a new golf course, a coffee shop, or a movie house. I have nothing against any of those things, in fact, many of us can't live without them, but their economic relationship to my community and its tax base takes on new significance in light of Kelo. And this is not just another "Not-In-My-BackYard" knee jerk reaction. To many, Kelo represents the ability of powerful economic interests to not only take the backyard, but also the house, the garage, and the whole darn neighborhood if the economics warrant it. This is wrong and of great concern. And that is why today's hearing is an essential step in trying to unpack Kelo's legal rationale and what it means for our neighborhoods, our communities, and our society.

Historically, the condemnation of private property through the Fifth Amendment power of eminent domain has followed a continuum. In the 19th century, the Supreme Court generally regarded the concept of "public use" as synonymous with "public purpose." In other words, after a condemnation, the property had to be government-owned or, in the case of an exclusively private transfer, had to involve a private party allowing some sort of public access to the property, similar to the railroads and public utilities common carrier duties. But as property development continued around the country during the 20th century, the Court began to reject the notion that "public use" always meant "public purpose." In fact, the notion of "public use" in eminent domain cases involving private transfers evolved into an economic benefit analysis regardless of whether the public actually had physical access. A collective economic development benefit analysis began to trump actual the traditional public purpose and function test.

Over the last thirty years, the eminent domain battle has been waged over whether an economic development benefit constitutes a "public use." Many contend, including Mrs. Kelo, that developers to advance their projects in the name of "redevelopment" of blighted or economically underperforming areas have simply co-opted the so-called "economic development" test. The problem is that one man's blight is another man's bliss. The additional challenge is then how the government is going to equitably and accurately reflect intangibles, like what makes a house a home, in an antiseptic economic analysis. And don't forget that these hard-fought local battles can get just as political as they do in this great body. Unfortunately, more times than not, the nation's Mrs. Kelos, with their modest but blissful slice of the world, lose out to big money and redevelopment plans. That is a very scary proposition for the vast majority of Americans who, like Mrs. Kelo, want to live freely in communities they know and love without fear of being removed in favor of so-called progress. That concern is even more urgent for our fellow Americans living in economically depressed areas.

While Kelo might be just another step down the continuum that started with the Supreme Court of the 1890s, I hope it is the beginning of the end for the proposition that if your private land or property is not being put to its best economic use you are vulnerable. No American should have to relent to a private party under the guise of government and give up his home or business. I doubt many of use would sell our homes if given twice the value. But after Kelo, the sad truth is that the use of eminent domain to take private property and give it directly to another private party is the de facto standard. At this point, it is only the Congress and the states that can stop the erosion and work to reestablish the original intent of the Fifth Amendment takings clause to protect Americans from governmental action, not subject them to government-sponsored unfair bargaining and sweetheart deals in the name of the greater good.

I would like to thank our distinguished panel of witness for joining us this afternoon. We look forward to your testimony. Thank you.

Related Documents