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The battle to retain property rights

The states and their people were concerned: The Constitution of 1789 appeared to give the new central government too much power. They seriously threatened not to ratify the thing unless they were promised a Bill of Rights to guarantee certain God-given liberties would remain inviolable — could never be subject to the whims of those in power.

The Bill of Rights isn’t there just because someone thought it would be nice. Without it, the whole deal would have been off.

And right in the middle of the Bill of Rights sits the Fifth Amendment, which delivers the following guarantee (among others): “Nor shall private property be taken for public use without just compensation.”

Does that sound clear to you? If so, you probably don’t work for the government.

Then there’s the question of what constitutes a “public use.” Everyone used to think they knew what that meant — the land was needed to site a bridge abutment, a firehouse, a naval dockyard, something like that.

Until the Supreme Court’s 2005 Kelo decision, that is, in which the liberal justices in the narrow majority ruled it was a “public use” for the city of New London, Conn., to take the perfectly safe and orderly homes of a group of local residents, clear the land and turn it over to a private developer who aimed to build a conference center that would “pay more taxes.”

The Kelo decision was expected to open the doors to more abusive seizure of private lands by elected officials greedy to hand over attractive parcels as payoffs to their political cronies.

Strangely enough, though, the public outcry seems to have had the opposite effect.

Many states have crafted legislative safeguards against such abuse — including Nevada’s PISTOL initiative, supported by voters in 2006 over the frenetic opposition of the political class.

In other states, the role of safeguarding property rights has fallen to the lower courts. The Wall Street Journal reported Aug. 12 on the case of Lori Ann Vendetti, one of a dozen homeowners in Long Branch, N.J., whose ocean-view properties are coveted by “a greedy local government and developer” who’d like to clear them and put up pricier condominiums along Ocean Terrace.

The city declared the neat if modest homes “blighted,” which, Journal columnist William McGurn reports, they’re clearly not.

The Washington-based Institute for Justice, the nation’s only libertarian public interest law firm, stepped in and went to bat for the little guys.

In court, New Jersey homeowners are doing better than Susan Kelo and her New London nutmeggers. Last year, the New Jersey Supreme Court, in Gallenthin Realty Development Inc. v. Borough of Paulsboro, defied the Kelo court, holding a local government could not declare a property “blighted” just because someone else might put it to a higher economic use.

Earlier this month, the justices also remanded the Long Beach case back to a lower court, placing on the city the burden of proving the homes of Ms. Vendetti and her neighbors are truly “blighted.”

The irony of such cynical tinkering with the word “blighted” is that such government meddling is the surest way to create real-life blight.

“My parents want to fix up their fence, I want to build on my property and other people have their own improvements,” Ms. Vendetti told the Journal. “But who wants to invest your money when you think the city is just going to end up taking your home from you?”

It’s not a new question. For decades, visitors to the Soviet Union, shown the attractive inside of a family’s apartment, would innocently ask why the residents didn’t fix up the exterior, painting and planting flowers so the whole city didn’t look so much like a burned-out war zone.

“What?” they would be asked. “So some commissar passing by might think, ‘Hey, that looks like a nice townhouse. My daughter is getting married next month. Let’s seize it so we can give it to her as a wedding present’?”

Such things don’t happen in nations that respect property rights. At least, we think they don’t.

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