Don’t get too attached to your house. If the government wants to, it can take it from you and give it to another private party solely for economic development reasons. The purported reasons might be to create a higher tax base for your community or simply to make your city more attractive.
In Kelo v. City of New London, the U.S. Supreme Court held that these “economic development takings” are constitutional. There doesn’t even have to be a likelihood that the taking will lead to an economic benefit. All that is required is the government’s decision must be “rational.”
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.”
While the U.S. Constitution no longer adequately protects property rights as a result of Kelo, states can protect their citizens by guaranteeing greater property rights through their own laws. North Carolina can provide these necessary protections through a new constitutional amendment.
The North Carolina League of Municipalities said a constitutional amendment is unnecessary. North Carolinians have nothing to worry about because state statutes are “crystal clear” and protect us from the Kelo decision, the league said.
It is true that there is no law that explicitly allows for statewide economic development takings. However, this is an incomplete examination of state law. The General Assembly, even before economic development takings were deemed constitutional, passed a bill that explicitly permitted Charlotte to engage in economic development takings. Imagine what the legislature could pass now that economic development takings are constitutional.
The state’s urban-renewal law also gives so much leeway to the government 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. In addition, there are easier ways, without even having to show the possibility of blight, which would allow the government to take property.
Assume that current state statutes do protect us from economic development takings. This still would provide inadequate protection for North Carolinians. State statutes can easily be changed. They can be changed at the whim of political interests. If the U.S. Supreme Court gutted freedom of speech, would we think a state statute protected freedom of speech in North Carolina? Of course not, and nor should we feel safe if a state statute did protect us from economic development takings.
A state constitutional amendment is the only way to protect North Carolinians. The N.C. Constitution is the highest law of the state, and once an amendment has been passed, it will be difficult to change. To amend the state constitution, three-fifths of both houses of the legislature have to approve, and a majority of voters must pass the change to the constitution.
Amending any constitution should be done rarely. However, it is hard to imagine a more appropriate time than now to amend the state constitution. Property rights are being threatened. An amendment would not create a new right. The amendment simply would be reaffirming a right that our nation’s Founding Fathers explicitly listed in the Bill of Rights.
North Carolina also has the only state constitution, except for possibly New Hampshire, that does not expressly prohibit the taking of private property without just compensation. In other words, even if Kelo didn’t exist, the state desperately needs 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 property. The government ensures that our hard-earned property won’t be taken from us. After Kelo, this critical understanding between citizens and the government is in question. North Carolina should make it clear, through a constitutional amendment, that in our state, the American dream and property rights are very much alive.
Bakst is legal and regulatory policy analyst for the John Locke Foundation in Raleigh.