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America Fights Over Property Rights


While governments in the United States have always had the right to confiscate private property for use by the general public, a recent U.S. Supreme Court decision has expanded what is called "eminent domain" to include taking private property for other reasons. The Supreme Court decision has prompted a number of states to seek new restrictions on the government's right of eminent domain.

Ever since the United States began, its constitution has given federal, state and local governments the right to take private land for public use -- if the owner is paid a fair price for it. Because of this principle, cities and states have been able to expand and improve their infrastructures, such as building new highways or schools, to continue to address the needs of the people. And to keep this process under control, this government right of "eminent domain" was restricted to narrow circumstances that fall under the category of what is defined as "public use."

Private Property Rights

Erica Little, a legal analyst at The Heritage Foundation in Washington, says this careful balance was essential to respect the rights of people who own a home or other property they consider essential to their lives. "When you own property, you have paid for it," she says. "You live in it. You use it. And there are few things more sacred to people, even globally, than their home. And that's why it's extremely important that when the government has a need for property, that there is a legitimate public use as well as adequate compensation for that property," says Little.

But that changed last year with a ruling by a five-to-four-majority of U.S. Supreme Court justices in a case called "Kelo vs. New London." In that case, the city of New London in the northeastern state of Connecticut wanted the house and land owned by Susette Kelo -- not for public need such as a highway, but rather to let a private real estate developer build a complex of office buildings.

The city of New London convinced the Supreme Court that taking Ms. Kelo's land under the principle of eminent domain was proper, because the private office complex would generate far more tax revenue for the city than Ms. Kelo's house and similar properties in the development's path.

Roger Pilon, with the Washington-based the Cato Institute, says that by agreeing with the city of New London, the Supreme Court expanded the limits of eminent domain. "The Constitution says that government may take property for a public use [i.e., a highway or a school]. This was not property taken for a public use. It was taken for a 'public benefit.' And that is not the same thing. 'Public benefit' is much broader. It allows government to take property that it would not be allowed to take under a strict reading of the term 'public use,'" says Pilon.

The Backlash

The Supreme Court's Kelo decision caused an outcry that reverberated across the United States. Many people disagreed with the idea that their home or property could be taken from them and given to another private entity. Their response, according to Michael Greve at the American Enterprise Institute in Washington, was to put the issue of eminent domain before the public in the form of a ballot initiative, which is a proposal that voters can approve or disapprove by voting "yes" or "no." "The Kelo decision," says Greve, "has sparked an outburst of initiatives across the country. There has to be some limitation on the government's ability to simply take property from [person] A and give it to [person] B. And that's what the 'public use' restriction is supposed to do."

Twelve U.S. states have initiatives up for a vote in the November seventh elections addressing property rights, though not all of the measures are directly intended to diminish the effects of the Kelo decision. Some of these initiatives seek to curb the impact of government controls on land use, and how those controls affect the value of that land.

For example, a cattle ranch that is near a lake or river may be affected by new water pollution regulations so strict that the number of cattle on the ranch has to be reduced in order to comply. With fewer cattle, the landowner will not make the same profit on the ranch, which, in effect, lowers the value of the land. In other communities, following so-called "smart growth' development policies has resulted in preventing some landowners from building, expanding, or otherwise modifying how they use their property. This, too, has affected property values, often lowering them.

Peter Smith, a law professor at the George Washington University, says people caught in this situation are fighting back by turning to the ballot box. "Private property owners have an argument that anytime a government regulation makes their property worth less that there has been a 'taking' - - the [U.S.] constitutional name for eminent domain," says Smith. He adds, "So private property advocates and movements that oppose government regulation have tried to use ballot initiatives to limit the power of the state to regulate."

And Roger Pilon at the Cato Institute says those states with such initiatives up for a vote this year are following in the steps of people in a western U.S. state who protested recently against land use restrictions that affected property rights and values. "In the state of Oregon," says Pilon, "citizens lived under that for over 30 years and finally got sick of it. And, in 2004, they passed a ballot initiative that had the effect of telling municipalities and these land use planners that either they had to pay the owners for the losses they suffered or waive [i.e.,cancel] the restrictions."

Kelo's Repercussions

A number of analysts say the strong reaction to the Supreme Court's Kelo decision and other government controls on property underscores how important land, and the use of that land, is to both its owners and to government. Those analysts also say that the new "public benefit" justifications for eminent domain provided by the Kelo decision cut both ways. Supporters say this will enable municipalities and other governmental entities to generate the tax revenue needed for infrastructure and better services to their citizens. Opponents, however, worry that no person's property will now be safe from others whose wealth and ability to persuade governments is greater than their own.

Regardless of the Supreme Court's decision, analysts say, the controversy over eminent domain is far from settled, and could be the subject of initiatives and lawsuits for years to come.

This story was first broadcast on the English news program,VOA News Now. For other Focus reports click here.