6/26/2005 01:17:00 PM|||Nathan Moore|||My friend and fellow blogger Bob Krumm has bounced an idea around to amend the Tennessee Constitution to preclude the effects of the endorsement of communism offered by the SCOTUS in its Kelo decision. Here's the proposed amendment, with my immediate comments.
No private property shall be taken by the State of Tennessee nor by any subordinate jurisdiction except for public use, and without just compensation.
No fee or admission shall be charged for general use of the grounds and facilities located on taken property, nor shall taxes be collected on such property.
At such time that the taken property is no longer in public use, its ownership shall revert to its previous private owners or their heirs without charge.
I'm not sure it does much more than Article I, Section 21 (Tennessee's eminent domain provision) does already. The key problem with Kelo is that it expands the idea of "public use" to unacceptable levels. An amendment that defined and limited public use
would be more effective and limit the courts from putting their grippy
claws where they don't belong.
The tax provision as written in the proposed amendment wouldn't necessarily keep an unscrupulous municipal legislature from giving away property for political gain on a
tax-free basis. As the law stands now under Kelo, I think that "public use" could be extended so far to include job growth and many other "benefits" to the public, which is technically not taxing the property. It's the same argument that fallaciously allows Congress to do so many things by combining the commerce clause with general welfare.
Anyhow, something with language that limits public use on its face would
solve the problem entirely. I haven't thought much about the text
myself, but I like the third paragraph as you've drafted it. That at
least keeps a constant check on "public use", though I'd be more
comfortable defining it more particularly ex ante.
If you get a chance, go check out Bob's blog here.|||111981009531177056|||Proposed Kelo Fix