by Matt Barr

Taken in

I'm late, but I just saw this suggested text of a constitutional amendment to nullify Kelo via Pejman Yousefzadeh. It says:

Amendment XXVIII: No taking of private property shall qualify as "for public use" under Amendment V if another private party obtains an interest in the property within twenty years of its taking.

A fine, clever, textualist, originalist, formalist, and other -ist amendment, which would be a disaster in practice. How would a private property owner defend against an eminent domain assertion in court? He couldn't. But hey, he can sue a few months later, after he's been kicked out and his house has been razed, right?

This is the danger of looking at Kelo, or any other issue really, as simply a matter of how you interpret words in a constitution. Ms. Kelo is being evicted forcibly from her home. Mayor Plusquellic in Akron is trying to get Canal Park Tower torn down and put 50-some residents out on the street. (The building's location overlooking Canal Park, seven [I think] year old gem and home of the Akron Aeros, is coincidental!) To square with the 28th amendment, Plusquellic would just have to promise no one would sell the land to a hotel or high rise developer for 20 years. Then in 2007, when they do, what's the remedy? And does it matter what the "remedy" is, if the building is gone? Remedies are another thing lawyers think about, not people.

Any amendment to correct Kelo should start by making it clear that private property may not be taken for private use in the first place, which the Fifth Amendment doesn't, and go from there. Since the Kelo court managed to read a comprehensive development plan as "publc use," it should embolden its language beyond "use." And, it should make clear that judicial deference to a legislative or executive body with a possible stake in the "use" may be improper. Like:

No private property owner may be deprived of his land, improvements or personal property without his consent, except in a criminal forfeiture proceeding after duly convicted. But the United States or any state or political subdivision may exercise eminent domain in the event of public necessity provided just compensation is paid. An owner whose private property is subject to eminent domain is entitled to an impartial judicial hearing on public necessity by a court with otherwise competent jurisdiction.

The change to "necessity" from "use" should do the trick, especially when combined with the "legislative intent" nonsense people usually like to apply to laws (It's clear to everybody we're trying to reverse Kelo, right?). For you textualists, "public necessity" is a term of art in the law, and should encompass bypasses, jails, hospitals and condemnation proceedings for crumbling buildings, but not industrial parks owned by the Pfizer Corporation. (It would be interesting to see how a court would handle environmental or ecological resource conservation or endangered species under this scheme.)

The Declaration of the Rights of Man takes this tack:

Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.

(But that's foreign law! Still.)

An amendment like this would also put a stop to asset freezing and forfeiture without being convicted of a crime, which drug warriors won't like, but maybe the political benefit of supporting a reversal of Kelo will outweigh pro-drug war politicians' baser instincts for a few months. Strike while the iron is hot!

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