KELO - A Warning Sign for Property Rights
When the United States Supreme Court ruled in June of last year that the City of New London, Connecticut could take Suzette Kelo's home, demolish it, and turn her lot over to a private developer, many Americans recoiled in anger and disbelief. The 5-4 Supreme Court decision, Kelo v. New London, essentially held that a community redevelopment plan for an older area which provided economic stimulus for the over-all community was a legally defensible reason for the exercise of the power of eminent domain. The Court held that the purpose of economic development is sufficient to permit a forcible taking of private property, and meets the Public Use requirement of the Fifth Amendment to the U. S. Constitution.
The resulting national controversy over such governmental takings (called eminent domain or condemnation) has focused on the plight of private owners in the path of urban renewal. Yet as serious as this recent development is, and as wide-spread as takings for economic development have become, there is a broader, even more significant issue which the Kelo decision suggests. Many of our federal courts have gradually, almost imperceptibly, moved to the position that a citizen's right of private property, protected expressly by the Fifth and Fourteenth Amendments, is not a fundamental right. Kelo is clearly indicative that an institutional mind-set has emerged with many courts that private property is a lesser, inferior right than the other civil rights guaranteed by our Constitution's Bill of Rights.
What is at stake is the issue of, which of our rights are deemed fundamental? More than you may think. When a court labels a citizen's right as fundamental, any judicial inquiry into an infringement or injury to that right by governmental action is very protective of the citizen. For example, if a public employee criticizes her governmental boss, that employer may feel the urge to quiet the criticism by regulation or retaliation. The employee's job may even be at risk. Under our Constitution however, that employee's right to freedom of speech - which includes the freedom to criticize - is protected by law. In short, the burden is on the government to prove to the court that the restriction of speech is absolutely necessary for the public health, safety and welfare.
The situation is markedly different, however, when the citizen's right is deemed non-fundamental. A city may suddenly decide that it is weary of constant growth, and that no lot owner could, henceforth, build on his/her private lot without a prohibitively costly impact fee. Any challenge to that law in court could, at least in federal court, be held to affect a mere economic right, and not a truly fundamental one. In that event, the court would give great deference to the city, and only over-turn the regulation if it were obviously arbitrary or unreasonable and bore no substantial relationship to a legitimate state interest. The burden of proof would thus be on the complaining citizen; and the burden would be great, often insurmountable. The difference between the two labels (fundamental or non-fundamental) may well determine who wins the challenge to the governmental action.
Increasingly, federal courts have been describing property rights as merely state-creations and not fundamental or basic to our way of life. See for example the 2005 case of Bailey v. City of Pinellas Park where the federal 11th Circuit held that a man's home was not a fundamental civil right protected by the Due Process Clause of the Constitution. Another example of a court ruling property is not fundamental is the 2005 decision by the 11th Circuit in Lewis v. Brown reaching the same conclusion about private property in general.
At the same time our Supreme Court has ruled the right to display obscene political comments is fundamental; the right to burn the American Flag is protected; and the right to pass out leaflets door to door is basic to our constitutional way of life. Private property, to some courts, is not fundamental; yet the right to use contraceptives is basic and constitutionally protected.
The conclusion of marginalizing the civil right of private property, is drastically different from the thinking which has permeated the roots of our Anglo-American culture since the middle ages. From the monumental Magna Charta in the 13th Century which protected private property seizures in violation of the law of the land, to Sir Edward Coke and John Locke in the 16th and 17th centuries, English custom, law and theory have heralded the central part private property plays in a free society. This philosophy was firmly rooted in early American traditions as well, and is reflected in the writings of Hamilton, Madison and John Marshall. And of course it is difficult to escape the plain language of the Fifth and Fourteenth Amendments to the U.S. Constitution! No person shall be deprived of life, liberty or property without due process of law. How can one even suggest that property is not fundamental.
Yet the Kelo decision and other recent federal court opinions seem to betray an ignorance of that basic tradition of private property; so firmly rooted in our culture. It is time, hopefully not past time, to raise the alarm; and more importantly to begin a drive to re-educate our lawyers and judges to what is truly and deeply fundamental to our American way of life.