Vital Signs

The Revolution That Wasn't

“A tremendous victory for property rights”—that’s how the Castle Coalition described voter approval of Initiative 31, which placed limitations on the power of eminent domain in Mississippi.  The November 8, 2011, results made Mississippi the 44th state to modify the power of eminent domain in response to the U.S. Supreme Court’s ruling in Kelo v. City of New London (2005).  With 88 percent of the states having curtailed the power of government to take property, it is tempting to conclude that the battle is over, and that property rights are once again secure.  Unfortunately, the real battle has not yet begun.

In Kelo, the Court upheld a local development plan in which several homes were taken so that a waterfront conference center and hotel could be built.  The homeowners asserted that their property was not being taken for a “public use” as required by the Fifth Amendment.  Instead, they argued, the local development corporation was simply handing the parcels to a private developer.  The planners countered that condemnation was constitutional because the new owner’s use of the property would increase jobs and tax revenues.  The Court agreed that such “public purposes” satisfied the public-use requirement, and thus the Takings Clause suffered no injury.

The backlash was fierce,...

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