a counter-kelo proposal

I’d like to propose an amendment to the state constitution that restores property rights to the citizens of Tennessee that were just eliminated by the Supreme Court. Like all good constitutional amendments, it should be written as an affirmation of individual rights and a prohibition upon the prerogatives of government. Here’s a first draft of my proposal:

No private property shall be taken by the State of Tennessee nor by any subordinate jurisdiction except for public use, and without just compensation.

No fee or admission shall be charged for general use of the grounds and facilities located on taken property, nor shall taxes be collected on such property.

At such time that the taken property is no longer in public use, its ownership shall revert to its previous private owners or their heirs without charge.

The first clause is basically a recitation of the final clause of the Fifth Amendment to the United States Constitution. The notable difference is that, by use of the word “except,” it limits governments to taking property only for public use.

The second clause defines “public use” as something that doesn’t charge a fee for general use. In other words, this clause allows the government to build a park, but not one that charges admission—i.e., a golf course. The phrase “general admission” does allow the park to charge a fee for special events—for example, renting a park pavilion to host a party. Furthermore, the “general admission” phrase allows the park to place certain areas off limits to the general public (maintenance areas, etc.) This clause also ensures that government may not profit from the land seizure. In fact, this clause makes the property seized non-taxable. It ensures that local governments lose even the tax revenue already generated by the current owner—in effect, nullifying the tax benefit that the city of New London coveted.

The third clause prevents government from seizing property for temporary public use, before selling it to a private developer (something already under consideration along Nickajack Lake). In other word, cities can’t seize your property just to flip it later. You, the lawful property owner retain the right to your property in perpetuity should the government ever vacate the land. Right now that very concept, known as a reversion clause, is underway at Fort Monroe, Virginia which is in the process of closing.

Here are some of the public uses that would be allowed under this amendment: parks, schools, libraries, and roads. Prohibited uses would be strip malls, office developments, stadiums, convention centers, golf courses, and toll roads.

Unfortunately, my draft amendment appears to disallow a college or a hospital, because they charge admission. It also prohibits the seizure of land for power and sewer lines since they would be operated by a private entity which presumably (though not necessarily) would be paying a fee to the government. That still needs some work, but I think the draft amendment is a good start.

None of this applies to the regular purchase of property by a municipality. The amendment’s purpose is to severely restrict the use of private property seized through eminent domain. After all, except for the power of the government to take a life, the power of the government to take your home is the greatest evil that government can visit upon its citizens. Its use must be limited to only those occasions where there is a clear public use, the public benefit is so enormous, and where there is clearly no potential for conflicts of interest.

Finally, the earliest an amendment could be enacted is November of 2010. That gives Tennessee’s local governments five years to use Kelo’s powers to their advantage and to our detriment. In addition to an amendment, our legislature must also protect property rights through legislation in its next session.

Update:  Bill Hobbs adds this:

"add a provision that bars state or local governments from ever using eminent domain to seize any church, synagogue, mosque, temple or other religiously-affiliated property (such as a church-run school or charitable mission) for any reason. Post-Kelo, religiously-affiliated property is now highly vulnerable as it is usually exempt from property taxes, and the Kelo decision empowers government to seize property and give it to another owner soley to increase the government’s tax revenue.

I agree with the sentiment, and think a protection of religion from the state should be added. (I’ll note that per the First Amendment, such language should be unnecessary, but then again, per the language of the Fifth Amendment, this entire proposed amendment is unnecessary.)  My only concern is that there are legitimate purposes when church land could be seized (roads, dams, airports, etc.).  However, I agree that there should be a high threshold.  I do think if the amendment forever prohibits the taxing of land taken by eminent domain, then the city has no incentive to take non-taxable land owned by churches and other charitable organizations.

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