Private property vs. judicial tyranny

"The true foundation of republican government is the equal right of every citizen in his person and property and in their management."

- Thomas Jefferson, to Samuel Kercheval, 1816

The Declaration of Indepen-dence in 1776 came very near mentioning the right to own property as one of the fundamental rights of mankind. That was a position our Founders, including the prime author of the Declaration, Thomas Jefferson, arguably inherited from English philosopher John Locke. Locke wrote in his Second Treatise of Government nearly a century earlier, in 1689, that all individuals are born with certain, God-given rights that cannot be taken away by man, and that among these are life, liberty, and property, which he also referred to as "possession" and "estates."

Thomas Jefferson's nearly identical statement in our Constitution instead reads, "life, liberty, and the pursuit of happiness." Without engaging in the great historical debate over whether Jefferson substituted "happiness" as another, broader protection to include "property," it is obvious to all that the right to own and keep private property has been recognized as a cornerstone of liberty since the founding of the United States. Without it, the other freedoms protected in our Constitution become hollow.

BUT IT IS much more of a personal issue than a philosophical debate for most Americans. A foundational part of the American dream is that we can work hard, save our money, and purchase a home or land that we can depend on being ours in perpetuity.

We also have always agreed as a nation that there should be one exception to the rule - that of eminent domain. When a government determines that a given piece of property is compellingly needed for the overall public good, such as new roads, schools, hospitals, military installations and the like, then government must have the right to purchase the property at a fair price. This right is specifically protected in our Bill of Rights, in 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."

While none of us would like our home or land to be taken under any scenario, this is the one exception which practicality demands if society is to have any public infrastructure, which we all agree it should. However, it is carefully balanced by the "just compensation" clause, so that while individuals can be forced to sell if their land is truly needed for "public use," the value of their land can never be taken. It also serves as a safeguard for frivolous takings, as the government has to pay the fair market price.

"Public use" has always been considered what it plainly says - use by the public, not by private businesses or individuals. Highways, schools, government offices, parks, public stadiums, urban renewal, etc. In fact, even the historical uses of the powers of eminent domain have been broad enough to be frightful.

BUT THIS SPRING, the U.S. Supreme Court put even the most fundamental private property protections at risk. In a shocking 5-4 decision, the nation's highest court chose to define "public use" as practically anything a given branch of government said it was.

In question was whether the city of New London, Conn., could seize an entire neighborhood, and hand it over free of charge to a real estate developer simply because the private resort he would build would bring in greater property tax revenue for the city.

Under this interpretation, every home, farm and business in the nation has no protection against government seizure, if someone else can make the case that their use of the land will result in higher property taxes, or any other result more to the liking of the government.

This cannot, and should not, be allowed to stand. If we are no longer secure in our properties, we have lost the ability to be truly free. But as serious as is this threat to private property, it affects much more than property.

In this decision, the Supreme Court once again has violated the U.S. Constitution by attempting to enact an illegal unilateral change to the Constitution in direct violation of the legal Amendment process. Five justices voted not to apply the Constitution to the case at hand, but to change the interpretation of the words "public use" to mean "public benefit."

THERE IS NO freedom, no right in our Constitution that can withstand an assault like this from out-of-control judges if we allow this ruling to stand. However, in spite of what many elitists would have you believe, the U.S. Supreme Court doesn't have the final word on anything in our nation, unless we let them, nor are any of us obliged to respect any ruling as final.

To protect against precisely this kind of overreach of authority, the Founders created three co-equal branches of government - the Congress, the president and the Supreme Court. Each has the ability to overrule the other. Now it's time for Congress to exercise that right, and those actions have begun.

The House in late May passed an amendment to the Treasury-Transportation Appropriations bill that would bar the use of federal funds from the Departments of Transportation or Treasury by any state or local government for projects involving the seizure of property for any purpose other than true "public" use.

The amendment passed by a 231-189 margin. Democrat House Leader Nancy Pelosi opposed the amendment, on grounds that it "nullified" a Supreme Court decision.

Most Republicans voted for it (192-31). Most Democrats voted against it (39-157). The Senate has yet to take up the bill, but there is considerable support for the amendment already in place, with U.S. Sen. Sen. John Cornyn (R-Texas) ready to offer it when the Senate takes up the larger bill.

HOUSE JUDICIARY Committee Chairman James Sensenbrenner (R-Wis.) also has introduced separate legislation, H.R. 3135, to combat this outrageous court decision. The Private Property Rights Protection Act of 2005 bans the use of any federal funds for any project involving eminent domain for private economic development. The bill also prohibits the federal government outright from doing the same.

In the months following this infamous Supreme Court decision, about half our states are looking into passing similar state laws. Several have used the opportunity to address many people's long-standing problems with the whole idea of eminent domain. New York is considering a bill requiring governments to pay not just the fair value, but 150 percent of that value when seizing property, the idea being that a homeowner is not voluntarily selling their home, and will have moving and relocation expenses as a result. California is considering a bill that would require governments to sell property back to the original owners if not used for the purpose for which it was seized.

Regardless of how it is accomplished, Congress must move this fall to protect not only the property rights of Americans, but the entire Bill of Rights which now stands vulnerable to the next illegal rewriting by an-out-of-control U.S. Supreme Court.

(Editor's note: The writer represents Georgia's 9th District in the U.S. House of Representatives.)