June 24, 2005

Hilleary Responds on Kelo Questions

Former U.S. Rep. Van Hilleary, now a candidate for the U.S. Senate from Tennessee, has answered the six questions I posed Thursday regarding the Supreme Court's decision in Kelo v. New London. I posed the six questions on this blog and also in an email to all six candidates running for the U.S. Senate from Tennessee, promising to post their responses verbatim. Hilleary chose to respond to the six questions in Q&A format. Here is Hilleary's response...

Do you believe this to be a good or bad decision, legally? Why?
This decision violates the clear intent of the takings clause in the Fifth Amendment to the Constitution, which is to restrict the ability of the government to take private property. The Amendment limits government takings to public use and requires just compensation for the property owner. That "public use" restriction has over time been held to include government facilities used by the public at large, such as schools and roads, and in limited cases for private entities with a public purpose, like common-carrier railroads. This Kelo decision explodes these restrictions and assigns a broader government latitude to take private property from one owner and transfer it to another private owner for the sole reason that the second owner is likely to upgrade it economically. This expansion of allowed takings clearly violates the narrow and restrictive intent of the Fifth Amendment right to private property ownership. As Justice O'Connor's dissent states, under this decision all private property is now vulnerable to a capricious taking.

Do you believe this to be a good or bad decision from a moral standpoint? Why?
The Kelo decision is troubling from a moral perspective because it puts the legislative body in a position to extinguish one private use of property for no clear compelling common good defined by a public use. The court effectively holds that a legislature's preference -- even a whim or passing fashion -- is suitable grounds for a taking. Taken to its extreme, this finding means that to avoid a taking, property owners must not only utilize property to their liking, but also to the legislature's liking. This court-sanctioned favoritism undermines the moral foundation of our legal system, the right of all individuals to equal and impartial treatment by the government.

Do you believe this to be a good or bad decision from a public policy point of view? Why?
By lowering the burden of proof for government takings for the purpose of economic development, this decision will inevitably widen government latitude for takings of other types. In Congress, I was among a group of property rights advocates who attempted to call attention to the alarming practice of regulatory takings, by which a government entity abusively prohibits a private property owners from profitably using their property through regulation, without compensation of any kind. These efforts to reduce unconstitutional regulatory takings will undoubtedly be set back by this decision and overzealous bureaucrats who seek to increase abusive regualtory takings will be emboldened.

Do you believe this to be a good or bad decision for economic reasons? Why?
This decision will have negative economic consequences for two reasons. First, it creates a disincentive for private property owners in distressed areas to upgrade property on their own. In the Kelo case, a municipality condemned property in a distressed area for economic development purposes, even though not all taken property was itself distressed. In upholding New London's condemnation, the Court has put all property speculators or aspiring owners in distressed areas on notice that their own efforts to rehabilitate properties one by one could all be erased at the whim of government in the name of "economic development." This disincentive will undoubtedly be enough to chill some economic development activity that would have happened as a result of natural market forces. Secondly, by availing government of the opportunity to broadly use condemnation and takings to alleviate economic blight, the Court has given governments an easy way out of economic problems that could better be solved by broad pro-growth policies like lower taxes and reduced regulation. The broader economy would be better served if municipalities and other governments were pushed to promote economic growth through the only long-term mechanism that works -- greater freedom.

Do you believe this to be a good or bad decision for the future of freedom in America? Why?
The right to private property ownership is a core freedom that underpins our country. With every activist Court decision that encroaches on this bedrock right of some property owners, the freedom of all property owners and all Americans is diminished.

And, finally, if you believe it to have been a bad decision from any of those perspectives, will you - if elected to the U.S. Senate - make it a priority to craft, sponsor, and pass legislation to restrict the power of government to take private property from one property owner and give it to another?
In the U.S. Congress, I was proud to be named a "Champion of Property Rights" by the League of Private Property Voters. I consistently fought for the rights of property owners against the ever-growing reach of government. As Tennessee's U.S. Senator, I will continue to fight for property rights and seek to pass legislation that will restrict the power of government to take property capriciously from one property owner for the purpose of giving it to another property owner who might or might not make it more economically profitable.

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