Kelo v. City of New London is one of the worst modern U.S. Supreme Court decisions. The 2005 high court case may not mean a lot to non-lawyers or to those not in a public policy field, but the 5-4 decision allowed for private property to be seized and transferred to another private party in the town of New London, Connecticut. A 2018 film titled “Little Pink House” starring Catherine Keener tells the harrowing story. A line from the film sums up the nightmare: “They can take your land. They can take your home, and it’s perfectly legal.”

While certainly not ideal, eminent domain is a legitimate and commonly understood practice of seizing a home or land by the government when the owner refuses to sell. It’s part of the “Taking Clause” of the Fifth Amendment in the Bill of Rights. This could happen for purposes such as roads, public utilities, a military base, or even public safety. Governments seizing property solely for the purpose of handing it over to other private entities for economic development and lucrative tax revenue is an entirely different matter. It violates a right John Adams compared as “sacred as the laws of God.”

After the Kelo decision, Associate Supreme Court Justice Clarence Thomas offered up this great line in his dissent: “Though citizens are safe from the government in their homes, the homes themselves are not.”

Many state legislatures scrambled in the wake of the decision to buttress their own laws and constitutions to protect property in the wake of  Kelo. Sixteen years later, North Carolina has yet to expand protections for property owners by amending the constitution to only allow for eminent domain for strict public use. The Castle Coalition, a group that stands up to eminent domain abuse, gives North Carolina a C- grade on this issue.

The N.C. House has done its part to pass eminent domain reforms in the past, but it inexplicably and inevitably dies in the state Senate. House Bill 271 is a good start which would narrow the meaning of seizing private property for “public use” instead of the current language of “use or benefit.” Yet, there is a much better model for the state to follow on eminent domain that truly protects the rights of the people.

Virginia, considered the gold standard by the Institute for Justice, has the far superior constitutional amendment. “It remedies a constitutional quirk by removing the General Assembly’s power to redefine public use from session to session, levels the playing field on compensation, explicitly rejects the Kelo rationale by stating economic development is not a public use, and requires the government to prove that an actual and legitimate public use exists,” reads a 2012 statement from IJ on the VA amendment.  

John Guze, senior fellow for legal studies at the John Locke Foundation, agrees that while the bill is well intentioned, it still falls short. “Unfortunately, compared to the constitutional and statutory protections that have been put in place by other states, and especially compared to the protections put in place by Virginia and Florida, which everyone agrees are the best in the country, in their present form these bills don’t go far enough.” Guze notes too that given the Kelo decision, the phrase “public use” can be interpreted in a manner that permits the use of eminent domain to transfer property from ordinary citizens to private developers and industrial corporations by claiming an economic benefit for the public. A clearer exclusion is needed in the text for that kind of potential abuse of power.

In Kelo, the city went after and targeted working-class homes. It’s the middle class who tend to have much of their wealth tied up in homeownership. The burden should always be on the government when it comes to the taking of property and a strong amendment like Virginia’s blocks the changing whims of the courts and legislature from unfairly seizing property. “The defense of private property is the standard by which ‘every provision’ of law, past and present, shall be judged,” declared Thomas Jefferson.

Strengthening constitutions to protect the rights of the people and their property is a must because of COVID-19. People in North Carolina and the nation saw unprecedented power by the government that easily decimated the capital and property of many businesses. The government’s first obligation is to protect inherent rights, and protecting private property is foundational. When it fails at that, paths for the government and crony-minded corporations can collude to take your home or land. North Carolinians should demand an even stronger bill than the one currently being considered in the state House. Again, most of us have relearned that if laws or amendments are open to loose interpretations, it’s often the working man or woman who loses.

Ray Nothstine is Carolina Journal opinion editor.