Your rights are at the mercy of government land grabs

"We've already established what you are. Now we're just negotiating the price." That's the punch line to an anecdote about the world's oldest profession, but it could also be the summary of the U.S. Supreme Court's recent decision in Kelo v. New London.

We are all serfs, holding our right to own property only so long as no governing body decides to take it, in which case all that's left to negotiate is the price, so says the Court.

The 5-4 majority opinion eviscerates any meaningful guarantee that private property cannot be seized by government any time it decides to do so. Instead, Kelo confirms that the only thing a governing majority must do is to concoct a pretext for taking your property and then pay you for it.

Clearly, that is not what the Founders had in mind when they wrote the Fifth Amendment: "No person ... shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Over time, however, the Supremes have subtly amended the Constitution - not by changing the words, since only Congress and the people can legitimately amend the Constitution - but by "giving the words new meaning." It's rather like transforming black through various shades of gray until it becomes virtually white.

Justice John Paul Stevens, writing the majority opinion, explains this evolution without even a tinge of embarrassment: "This Court long ago rejected any literal requirement that condemned property be put into use for the general public."

So much for the plain language that allows takings strictly for "public use" and only then with "just compensation" to the property owner.

Stevens continues, "That narrow view steadily eroded over time. ... Not only was the 'use by the public' test difficult to administer, but it proved to be impractical given the diverse and always evolving needs of society."

So the very justices entrusted to preserve and protect our constitutional freedoms have instead rendered perhaps the most important freedom meaningless. James Madison, the father of the Constitution, believed that protection of private property was so vital to individual liberty that he said the sole function of a just government is to "secure to every man whatever is his own."

Perhaps the most disappointing aspect of the Kelo decision was the concurrence of Justice Anthony Kennedy, without whose assent the majority would not have carried the day.

An advocate for the unwritten "right to privacy" on matters involving sexuality, Kennedy complains in this case that a "strong presumption of (liberty) ... would prohibit a large number of government takings."

Yet, that's precisely what the Fifth Amendment is intended to do: protect individual freedom by restraining the power of government.

In this case, the City of New London, Conn., sought to redevelop a portion of the community to capitalize on a $300 million research facility being constructed by Pfizer.

The city authorized an unelected board, the New London Development Corporation (NLDC), to plan the redevelopment and to exercise condemnation power over private property in the development area which was to include a hotel, 80 new residences, and 90,000 square feet of office space, retail and parking.

Rather than accommodate existing residents who have supported their community for decades, NLDC chose to take their property by force. One such property owner, Wilhelmina Dery, lives in a house that has been in her family for more than 100 years, and her son's family lives next door in a house he received as a wedding gift.

According to the Court, New London owed the Derys no deference - only monetary compensation Ð before driving them from their homes with bulldozers. Apparently, in Justice Kennedy's mind, government must stay out of your bedroom, but it can demolish your entire house.



Mark Hillman (R-Burlington) was recently appointed Colorado State Treasurer after serving seven years in the State Senate where he sponsored numerous bills to protect private property. His e-mail address is mail@markhillman.com.