Property Rights After the Kelo Decision

“Imprimis” is Hillsdale College’s monthly publication that has over 1.25 million readers. It’s Hillsdale’s way of sharing the ideas of the many distinguished speakers invited to their campus. And, I might add, Hillsdale College is one of the few colleges where students get a true liberal arts education, absent the nonsense seen on many campuses.

The January edition of “Imprimis” contains an important speech by former New Jersey Superior Court Judge Andrew P. Napolitano titled “Property Rights After the Kelo Decision.” For those who haven’t kept up, the Kelo decision is the 2005 U.S. Supreme Court 5-4 decision that upheld the city of New London, Connecticut’s condemnation of the property of one private party so that another private party could use it to build an office facility. Such a decision was a flagrant violation of the letter and spirit of the Fifth Amendment, which reads in part, “nor shall private property be taken for public use without just compensation.” Public use, according to the Constitution’s framers, means uses such as roads, bridges, and forts.

While most Americans appreciate the concept of yours and mine, Judge Napolitano’s speech gives it greater focus. Formerly a law professor, Napolitano says, “When teaching law students the significance of private property, we tell them that each owner of such property has something called a ‘bundle of rights.’ The first of these is the right to use the property. The second is the right to alienate the property. The third and greatest is the right to exclude people from the property.”

Can the government force one to sell his property? James Madison said yes, so long as it was for a public use and the owner was paid a fair market value. Thomas Jefferson was opposed to a person being forced to sell his property for a public use, arguing that the essence of private property is the right to exclude anyone, including government, from the property. But Madison’s view prevailed, hence the Fifth Amendment provision.

In recent years, state and local governments have been running roughshod over private property rights in ways that would have horrified our founders. In the 1959 Courtesy Sandwich Shop case, a New York court held that if the tax collector collects more taxes by taking the private property of one party and transferring it to another, that’s a public use permitted by the Constitution.

Recently, the city of Port Chester, N.Y., gave a private developer virtual power to condemn property within its designated redevelopment area. Bart Didden and Dominick Bologna, owners of property within the redevelopment area, approached the private developer for a permit to build a CVS pharmacy on their land. The developer told them to pay him $800,000 or give him a 50 percent interest in the CVS pharmacy or he’d have the local government condemn the land. Didden and Bologna refused, and the next day their land was condemned. The 2nd U.S. Circuit Court of Appeals upheld the local government’s decision, which is nothing less than sanctioning extortion.

Napolitano concluded his speech pointing out something that few Americans appreciate. Rights do not come from government; they spring from our humanity. Or, as our founders put it, we are endowed by our “Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness,” the latter meaning property. We establish governments to secure these rights.

Unfortunately, Americans have permitted governments at every level to become increasingly destructive of the ends they were created to serve. Under the color of law, government often does to us what thieves and crooks do, and like a nation of sheep we stand by and take it, and what’s worse, sometimes we ask for it.