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Possible Constitutional Amendment for Property Rights


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10/30/2015
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In 2005, the U.S. Supreme Court interpreted the Constitution to allow the government to take private property from an owner if the transfer of property "might" promote economic development.  This decision, handed down in Kelo v. City of New London, is highly unpopular across political lines and there is move to propose a new Constitutional amendment that would negate the Court's ruling. The standard contemplated by the Court in Kelo requires only the possibility of economic development in order to force a private owner to give up their land - the owner has little or no choice in the matter.  These private property owners are normal people without money or political clout to fight back.  

A new amendment would attempt to protect private property owners by putting greater restrictions on how or why the government would be allowed to take private property.  One proposal is to limit takings by the government to circumstances where the government proves by clear and convincing evidence that the taking is necessary for public health or safety.  Changing the requirements for a taking from "economic development" to "public health and safety" would drastically change the eminent domain landscape.  Due to the bipartisan disapproval of the Kelo decision, approval of such an amendment is highly possible and would ensure greater protections for private property owners.

See Harvard Environmental Law Review, Vol. 30, 2006, Eric Rutlow wherein his article begins with this.

KELO V. CITY OF NEW LONDON∗ Eric Rutkow** The Fifth Amendment to the Constitution reads, “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.” Last Term, in Kelo v. New London, 1 the Supreme Court held in a 5-4 decision that the Constitution allows the government to take property through eminent domain solely for the purpose of “economic development,” which it found to constitute a “public use” as required by the Fifth Amendment. The decision missed an opportunity to establish a heightened-review test that might have mitigated abuses historically associated with such condemnations. Instead, it used precedent to shield a determination that social benefits from such takings outweigh threats to security of property as well as potentially disproportionate socioeconomic impacts. 



Category: General


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