8/02/2005

Property Rights — Tom McClintock's "Kelo Protection" Amendment: The Claremont Institute

While bloggers were still swarming over the text of the now infamous Kelo decision, State Senator Tom McClintock promised to introduce a constitutional amendment to protect property rights in California. Wednesday he held a press conference to "announce the introduction of SCA 15 and ACA 22 to restore the original property rights protections of the American Bill of Rights that were ripped out of the Constitution by the Kelo decision of the U.S. Supreme Court two weeks ago."

The proposed amendment to the California constitution ought to be taken as a model for other states in the wake of the enormous wave of Kelo-inspired outrage still swirling throughout the nation. With or without Kelo, state law can still provide adequate protection against sloppy jurisprudence at the national level.

In California, as in many other states, a large and likely unnecessary bureaucracy exists in the name of "redevelopment" — the government's active involvement in planning and developing land. Citing the sort of loose definition of "public use" that Kelo legitimizes, local governments across the nation often run roughshod over citizen's property rights.

It should come as no surprise that redevelopment bureaucrats will likely be the major source of opposition to McClintock's "Homeowner and Property Protection Act."

John Shirey, executive director of the California Redevelopment Association, said California already has laws carefully restricting the use of eminent domain. But sometimes redevelopment agencies need to seize property if it is particularly blighted, he said. (Harrison Sheppard, LA Daily News)

Now it is true that under California law, local governments are supposed to use eminent domain in "blighted" areas. Yet, as we will never tire of explaining, local governments habitually designate whatever they happen to want to seize as "blighted." As colleague Conor Friedersdorf posted yesterday, "everything is blighted" according to the currently elastic definitions promoted by redevelopment advocates. This case study from our newsletter explains how redevelopment works in practice—the city of Claremont simply labeled its wealthy downtown area "blighted" in spite of the obvious.

Executive Director Shirey also laments that McClintock's "... amendment eliminates the use of eminent domain for economic development purposes." Um, yes. That’s the point. As the amendment says:

It is the intent of the Legislature that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit, as is currently permitted under the United States Constitution under Kelo v. City of New London...

This solution to protect property rights in spite of the [US Supreme Court] ought have widespread bipartisan support. It deserves a great deal more press than it has so received so far...


The Claremont Institute: www.claremont.org