News: CJ Exclusives

Amendment Called Kelo Remedy

Model constitutional amendment recommended by Locke analyst

North Carolina can protect private property rights with a carefully worded constitutional amendment. That’s the new recommendation from a John Locke Foundation analyst.

“North Carolina needs a constitutional amendment to protect property rights that will contain very specific language,” Daren Bakst wrote in his recent report, “A Model Amendment.”

“The attack on private property rights is getting some well-deserved attention,” said Bakst, a foundation legal and regulatory policy analyst. “In Kelo v. New London, the U.S. Supreme Court held that the government can take private property and transfer it to another party solely for economic development reasons.”

Bakst said that decision means North Carolinians can no longer look to the U.S. Constitution to protect their property. “If a house can generate more tax revenue as a parking lot, then it may be possible for the government to take the house.”

Most states prohibit government from taking private property without just compensation, Bakst said. North Carolina has no specific constitutional provision offering that same protection. “Even in their wildest dreams, the founders could not have envisioned takings for economic development,” Bakst said.

Now Bakst promotes a model constitutional amendment. “It would establish strong property-rights protections and place clear limitations on the government’s ability to infringe on these fundamental rights.”

The model amendment would also protect private property owners from future court rulings, Bakst said.. “North Carolinians need a property-rights amendment that will define public use, prohibit takings for private use, require just compensation up front, and force the government to prove that the taking is a last resort.”

The amendment would limit the purposes for which government could use its power of eminent domain to seize private property, Bakst said. That includes a narrow definition of the term “public use.”

“The traditional understanding of ‘public use’ is the transfer of private property for public ownership, as in the case of a road or school,” Bakst said, “or for use by the public, as in the case of a stadium or railroad.”

The model amendment would block government from taking private property for private uses, Bakst said. “It would expressly prohibit any takings for private use, including economic development.”

The amendment would also limit the use of “blight” laws to take private property, Bakst said. “North Carolina’s urban renewal law, which addresses blight, makes it easy to take property,” Bakst said. “It even allows for the taking of property that may become blighted. The model constitutional amendment would appropriately limit the reach of any urban renewal law.”

Bakst delivered his report this month to members of a new legislative study group. The N.C. House Select Committee on Eminent Domain Powers could recommend a constitutional amendment or other legislation when the General Assembly heads back to work in May.

Mitch Kokai is associate editor of Carolina Journal.