Property Rights After the Kelo Decision

Andrew Napolitano
Senior Judicial Analyst, FOX News Channel

Andrew NapolitanoAndrew P. Napolitano is a senior judicial analyst at FOX News Channel, where he appears daily on The Big Story with John Gibson and is a regular on The O’Reilly Factor. He received his B.A. from Princeton University and his J.D. from the University of Notre Dame. From 1987-95 he was a judge on the New Jersey Superior Court. He also served for 11 years as an adjunct professor at Seton Hall Law School, teaching constitutional law and jurisprudence. Mr. Napolitano’s most recent book is The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land.

The following is abridged from a speech delivered on the same day and at the same event as the preceding speech by Mr. Illarionov.

When teaching law students the significance of private property, we tell them that each owner of such property has something called a “bundle of rights.” The first of these rights is the right to use the property. The second is the right to alienate the property. The third and greatest is the right to exclude people from the property.

With this in mind, let me pose a question: Can the government force a property owner to sell his property? James Madison argued that the government could do so as long as it paid the owner a fair market value and as long as the property was purchased for a public use, such as a road or a highway or a bridge. Thomas Jefferson was opposed even to that, arguing that the essence of owning property is the right to exclude everybody—even the government—from that property, and that no one could force a sale. But Madison’s ideas prevailed and were incorporated in the Fifth Amendment, which allows the government to take property for “public use” if it pays the property owner “just compensation.”

The “public use” requirement of the Fifth Amendment is now no more. A 1959 court case entitled Courtesy Sandwich Shop, Inc. v. Port of New York Authority arose when the owners of a lower Manhattan deli refused to sell out to the Port Authority in order to make room to build the World Trade Center. The Court of Appeals of the State of New York, which is the highest state court, held that because the World Trade Center would enhance the area’s economy, the owners of Courtesy Sandwich Shop could be forced to sell in return for the property’s fair market value. When the U.S. Supreme Court refused to hear the shop owners’ appeal, this became settled law. From that point on, there have been tens of thousands of takings of property for a non-public use. Thus “public use” as found in the Fifth Amendment was redefined by the courts as “public purpose.”

I thought these property takings would finally come to an end last year when the Supreme Court agreed to hear the case called Kelo v. City of New London. I was wrong. We all know what happened: Suzette Kelo and her neighbors, on their own and with their own money, turned a slum neighborhood in New London, Connecticut, into a sparkling, lovely little village on the Long Island Sound. The City of New London decided that it wanted to condemn that property and turn it into a parking lot for Pfizer Corporation. I should point out that Pfizer was not a party to the case, and Pfizer said many times that it would build a parking garage in a different location, allowing Suzette Kelo and her neighbors to live where they wished. In response to this proposal, the City of New London said no, a trial court in Connecticut said no, an appellate court in Connecticut said no, the Connecticut State Supreme Court said no, and the U.S. Supreme Court said no. In doing so, the latter went even further than the Court of Appeals of New York had gone in the Courtesy Sandwich Shop case: It ruled that if the local tax collector collects more money as a result of the taking of property by government and its sale to another private owner, that is a public use!

Like a nation of sheep, we continue to allow government to violate our natural rights, of which the right to own property is an essential one. Thinking about the Kelodecision, I am reminded of one of Thomas Jefferson’s favorite quotes from William Pitt the Elder:

The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter. All of his forces dare not cross the threshold of the ruined cottage.

In short, the natural right to exclude others, including the government, from one’s property—a right enshrined in the Fifth Amendment—has now been eviscerated by the courts. But our natural rights don’t come from the government. They spring from our very humanity, which is why Jefferson called them inalienable in the Declaration of Independence. Thus government has no legitimate power to take them away from us. Of course, if one is a criminal and violates the natural rights of others, the government may use due process through the mechanism of a fair trial and take one’s rights away. But Suzette Kelo was no criminal, and due process was not observed in allowing the City of New London to take what was hers.

One encouraging sign is that, since the Kelo decision, numerous states have fought back by passing legislation or amending their constitutions to prohibit such takings. One can only hope that this movement will continue.