CPR Member Scholar John Echeverria was on Capitol Hill yesterday, testifying before the House Judiciary Committee’s subcommittee on the Constitution. His topic was a proposed bill from Rep. Jim Sensenbrenner (R-WI) to impose federal limits on state and local use of eminent domain – the authority to condemn private property so that it can be used for public purposes. The subject became particularly controversial in 2005 when the Supreme Court issued its ruling in Kelo vs. City of New London, upholding the city’s condemnation of private property so that it could be sold and developed by a private developer whose project the city had concluded served the public interest of economic development.
Sensenbrenner’s bill, H.R.1433, the Private Property Rights Protection Act of 2011, would suspend federal economic development funds for states that condemn property for purposes of economic development. That’d be a powerful disincentive, although short of an outright prohibition on the use of eminent domain. Of course, there’s only so far that Congress can go in banning the use of eminent domain, since it is explicitly authorized in the Fifth Amendment to the Constitution. (That’s right, the amendment that ensures citizens cannot be forced to testify against themselves also protects us against double jeopardy, ensures due process of law, and prohibits governments from taking private property for public use without providing just compensation. It’s an action-packed 108 words.)
In his testimony, Echeverria argues that federal action is “unnecessary, unwise as a matter of policy, and would be highly destructive of the recent efforts by the States to address this specific issue.” He goes on to say:
The basis for these conclusions is that, in the six years since the Kelo decision was handed down, every or virtually every state legislature in the country has studied proposed reforms on this subject, held hearings on the use of eminent domain, and in many cases enacted new legislation limiting the use of eminent domain. In addition, in several States ballot measures addressing eminent domain reform have been submitted to the voters. All told, approximately 40 States, four-fifths of all the States in the nation, have now adopted some kind of post-Kelo reform measure. Some applaud the reform steps adopted, while others believe that some of these steps have been misconceived. Some believe certain state legislatures have gone too far in curtailing the power of eminent domain, while others believe some States have not gone far enough or have abdicated their responsibility by not imposing any new constraints on this governmental power. The bottom line, however, is that the state legislatures, as well as the voters themselves in some States, have fully engaged on this issue.
His full testimony is here.
