Monday, February 2, 2009

Perry: Property Rights in Danger

The new legislative session has begun on Beacon Hill. It is expected that some 6,000 proposals will be filed this session, many of which are designed to expand the role of government. Regular readers of this column know that I am deeply concerned with the ever expanding size and scope of government. While most of the expansion of government’s power comes from legislative and executive branches, with increasing frequency, we need to be concerned about the judicial branch of government as well.

In what can only be described as one of the most significant reductions to property rights in America, in the case Kelo vs. New London, the United States Supreme Court ruled for the first time that taking private property by right of eminent domain for the purpose of economic development satisfies the "public use" requirement of the Fifth Amendment to the Federal Constitution. As a refresher for those who have not read the Bill of Rights recently, the 5th Amendment Takings Clause states, “…nor shall private property be taken for public use, without just compensation.” Respect for private property rights is a founding principle of our nation and serves an important role in our modern political economy.

It is my strong belief that the policy set forth in the Court's majority opinion goes against the intent of our Founding Fathers and our Constitutional history. Up until this decision, private property rights have been held to the highest esteem and we as a society have made sure eminent domain takings are limited to situations where there is clear necessity to seize property in the name of the public good, such as new public hospitals, schools and transportation improvements. This decision is a direct assault on the rights of all Americans and a significant step against freedom to own property.

As pointed out in the dissenting opinion, the Court abandoned the long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be economically upgraded. This decision and general mindset of the liberals of the Supreme Court should greatly disturb every American.

In an effort to protect our citizens from abusive governmental takings and to make sure the Supreme Court's ruling does not adversely impact our laws here in Massachusetts, it is necessary to expand the existing protections offered by our laws at the state level.
We must lead the charge to ensure the citizens of Massachusetts are not subject to an overactive Court with a liberal agenda, which increasingly seems to have a desire to be in the legislative business. All courts owe the principal of separation of powers deference to a legislature’s judgment concerning the public policy of whether the government owns, or the public has a legal right to use, the taken property.

In this next session, Republicans will support proactive changes to the statutory components and amend Chapters 121A, 121B, and 121C of the Massachusetts General Laws. This would clearly state that the taking of property for the sole purpose of economic development, except under a few very limited circumstances, shall not be permitted in the Commonwealth. For maximum protection for property owners and tax payers, a Constitutional Amendment to the first paragraph of Article X to the Massachusetts Constitution is needed. I have cosponsored language for such an amendment, which would mirror the statutory changes and make permanently enshrined in our State Constitution the protections Americans already thought were provided by the Bill of Rights. Each and every elected official in office on the state or federal level should be talking about our efforts to protect private property rights. This is not solely a Republican or a conservative issue. This decision strikes at the core of American founding freedoms as we know them. The potential abuses of ever growing governmental power must be trimmed back as they continue to step over into our freedoms.