Don’t get too attached to your house — if the government wants to, it can take it away from you and give it to another private party solely in the name of economic development. And such a move could be legally justified as a way to increase your community’s tax base or simply make your city more attractive.
In Kelo v. City of New London, the U.S. Supreme Court held that such “economic-development takings” are constitutional. It doesn’t even have to be likely that the taking will generate an economic benefit. All that’s required is that the government’s decision be “rational.”
In the wake of Kelo, the U.S. Constitution no longer adequately protects property rights. As former Justice Sandra O’Connor argued: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
States, however, can protect their citizens by guaranteeing greater property rights through their own laws. In North Carolina, a new constitutional amendment could provide these needed protections.
The North Carolina League of Municipalities maintains that a constitutional amendment is unnecessary. North Carolinians have nothing to worry about, says the group, because state statutes offer “crystal clear” protection from the Kelo decision.
It’s true that no specific state law explicitly allows such economic-development takings. But that’s only one facet of state law. Even before Kelo, the N.C. General Assembly passed a bill that permitted Charlotte to take property for private economic development. Just imagine what the Legislature could do now that the Supreme Court has ruled such moves constitutional.
The state’s urban-renewal law also gives the government so much leeway that “enterprising” attorneys and local governments can easily use it as a pretext for economic-development takings. This law does not cover blighted property alone; the government also can take property that might become blighted. And there are easier ways for the government to take property without even having to show the possibility of blight.
But even if current state law does protect us from economic-development takings, that’s not good enough. State statutes can easily be changed at the whim of political interests. If the U.S. Supreme Court gutted freedom of speech, would we think a state statute protecting freedom of speech in North Carolina was adequate? Of course not.
A state constitutional amendment is the only way to protect North Carolinians. The N.C. Constitution is the highest law of the state, and if an amendment were been passed, it would be difficult to change. Amending the state constitution requires the support of three-fifths of both houses of the Legislature, and a majority of voters must then approve the change.
Amending any constitution should be done rarely, but it’s hard to imagine a more appropriate time than now. Property rights are being threatened, and an amendment would not create a new right. Instead, it would simply reaffirm a principle that our nation’s founders explicitly listed in the Bill of Rights.
It’s also worth noting that North Carolina’s is the only state constitution — with the possible exception of New Hampshire — that doesn’t expressly prohibit the taking of private property without just compensation. In other words, even if Kelo didn’t exist, the state would desperately need a constitutional amendment to adequately protect property rights.
The foundation of the American dream is being able to rely on the government to legally protect our hard-earned property, ensuring that it won’t be taken from us. But Kelo puts this critical understanding between citizens and government in jeopardy. North Carolina should make it clear, through a constitutional amendment, that in our state, the American dream and property rights are very much alive.
[Daren Bakst is the legal and regulatory-policy analyst for the John Locke Foundation in Raleigh. A licensed attorney, Bakst has also written for such groups as the Competitive Enterprise Institute and Frontiers of Freedom.]