IN THE SENATE OF THE UNITED STATES
June 27, 2005
Mr. Cornyn introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To protect homes, small businesses, and other private property rights, by limiting the power of eminent domain.
This Act may be cited as the
Protection of Homes, Small Businesses,
and Private Property Act of 2005.
Congress finds the following:
The protection of homes, small businesses, and other private property rights against government seizures and other unreasonable government interference is a fundamental principle and core commitment of our Nation's Founders.
As Thomas Jefferson wrote on April 6, 1816,
the protection of such rights is
the first principle of association, the
guarantee to every one of a free exercise of his industry, and the fruits
acquired by it.
The Fifth Amendment of the United States
Constitution specifically provides that
private property shall
be taken for public use without just compensation.
The Fifth Amendment thus provides an
essential guarantee of liberty against the abuse of the power of eminent
domain, by permitting government to seize private property only
On June 23, 2005, the United States Supreme Court issued its decision in Kelo v. City of New London, No. 04–108.
As the Court acknowledged,
long been accepted that the sovereign may not take the property of A for the
sole purpose of transferring it to another private party B, and that
under the Fifth Amendment, the power of eminent domain may be used only
for public use.
The Court nevertheless held, by a 5–4 vote, that government may seize the home, small business, or other private property of one owner, and transfer that same property to another private owner, simply by concluding that such a transfer would benefit the community through increased economic development.
The Court's decision in Kelo is alarming
because, as Justice O'Connor accurately noted in her dissenting opinion, joined
by the Chief Justice and Justices Scalia and Thomas, the Court has
effectively . . . delete[d] the words and thereby
for public use from
the Takings Clause of the Fifth Amendment
to enforce properly the Federal Constitution.
Under the Court's decision in Kelo, Justice
[t]he specter of condemnation hangs over all property.
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.
Justice O'Connor further warns that, under
the Court's decision in Kelo,
[a]ny property may now be taken for the
benefit of another private party, and
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 fewer resources to those
with more. The Founders cannot have intended this perverse
As an amicus brief filed by the National
Association for the Advancement of Colored People, AARP, and other
[a]bsent a true public use requirement the takings
power will be employed more frequently. The takings that result will
disproportionately affect and harm the economically disadvantaged and, in
particular, racial and ethnic minorities and the elderly.
It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain.
It would also be appropriate for States to
take action to voluntarily limit their own power of eminent domain. As the
Court in Kelo noted,
nothing in our opinion precludes any State from
placing further restrictions on its exercise of the takings
Protection of homes, small businesses, and other private property rights
The power of eminent domain shall be available only for public use.
In this Act, the term public use shall not be construed to include economic development.
This Act shall apply to—
all exercises of eminent domain power by the Federal Government; and
all exercises of eminent domain power by State and local government through the use of Federal funds.