The N.C. House of Representatives has approved a proposal to amend the state constitution by adding the following language:

“Private property shall not be taken by eminent domain except for a public use. Just compensation shall be paid and shall be determined by a jury at the request of either party.”

This proposed amendment is much too weak to protect North Carolina property owners from eminent domain abuse.

It adds very little to the Fifth Amendment’s Takings Clause (“nor shall private property be taken for public use without just compensation”), which we already know — thanks to the Supreme Court’s 2005 decision in Kelo v. City of New London — can be interpreted in ways making it ineffectual.

The most egregious instances of eminent domain abuse occur when property is taken from one private owner — typically an impecunious and politically weak homeowner — and given to a different private owner — typically a wealthy and politically well-connected property developer.

When the Supreme Court held, in Kelo, that the U.S. Constitution does not protect the poor and the weak from this kind of abusive “private transferee” taking, many states stipulated in their state constitutions that eminent domain could not be used for economic development. Several members of the state House have been trying for years to do the same thing in North Carolina, including Rep. Larry Pittman, R-Cabarrus, this year. It would be a shame if their diligence failed to produce a really effective amendment.

Given that private transferee takings are such a big part of the problem, it is tempting to think that the proposed amendment could be strengthened by adding a suitably narrow definition of “public use,” and because the most characteristic use of eminent domain has been to obtain land for things like roads and government buildings, it is tempting to think that a good definition of “public use” might be “use by a public agency.”

But that will not work. Since colonial times, eminent domain also has been used to obtain land for use by private agencies: for millponds used by privately owned gristmills in the 18th century, for rights-of-way used by privately owned railroads in the 19th century, and for easements used by privately owned utilities in the 20th.

Few reformers want to prohibit these kinds of private uses. However, coming up with a coherent, abstract definition of “public use” that permits acceptable private uses while forbidding unacceptable ones has proven difficult.

Fortunately, there is another option. The proposed amendment could include the stipulation that “the question of whether a taking complies with the public use requirement is one that must be decided in a court of law and not something that can be determined by a legislative body or administrative agency.”

For over 70 years, the Supreme Court generally has applied greater scrutiny regarding the specifically named rights that are singled out in the Bill of Rights. For some reason, the court did not in Kelo, even though it can be argued that those who wrote and ratified the Constitution regarded the right to own property as the most fundamental right of all.

There is no reason the courts of North Carolina should follow the federal justices’ example. Requiring the courts to make public use determinations on a case-by-case basis would ensure that they do not, and it also would do a lot to protect North Carolina property owners from eminent domain abuse.

Any judge in North Carolina who wants to be re-elected will think long and hard before authorizing transfers from private homeowners to private developers simply because the latter claim to be able to generate more tax revenue or faster economic growth.

Jon Guze is director of legal studies for the John Locke Foundation.