II 

109TH CONGRESS 

1ST SESSION S. 1313 

To protect homes, small businesses, and other private property rights, by 

limiting the power of eminent domain. 

IN THE SENATE OF THE UNITED STATES 

JUNE 27, 2005 

Mr. CORNYN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL

To protect homes, small businesses, and other private 

property rights, by limiting the power of eminent domain.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protection of Homes, 

5 Small Businesses, and Private Property Act of 2005’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) The protection of homes, small businesses, 

9 and other private property rights against govern10 ment seizures and other unreasonable government 
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1 interference is a fundamental principle and core 

2 commitment of our Nation’s Founders. 

3 (2) As Thomas Jefferson wrote on April 6, 

4 1816, the protection of such rights is ‘‘the first prin5 ciple of association, the guarantee to every one of a 

6 free exercise of his industry, and the fruits acquired 

7 by it’’. 

8 (3) The Fifth Amendment of the United States 

9 Constitution specifically provides that ‘‘private prop10 erty’’ shall not ‘‘be taken for public use without just 

11 compensation’’. 

12 (4) The Fifth Amendment thus provides an es13 sential guarantee of liberty against the abuse of the 

14 power of eminent domain, by permitting government 

15 to seize private property only ‘‘for public use’’. 

16 (5) On June 23, 2005, the United States Su17 preme Court issued its decision in Kelo v. City of 

18 New London, No. 04–108. 

19 (6) As the Court acknowledged, ‘‘it has long 

20 been accepted that the sovereign may not take the 

21 property of A for the sole purpose of transferring it 

22 to another private party B’’, and that under the 

23 Fifth Amendment, the power of eminent domain 

24 may be used only ‘‘for public use’’. 
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1 (7) The Court nevertheless held, by a 5–4 vote, 

2 that government may seize the home, small business, 

3 or other private property of one owner, and transfer 

4 that same property to another private owner, simply 

5 by concluding that such a transfer would benefit the 

6 community through increased economic development. 

7 (8) The Court’s decision in Kelo is alarming be8 cause, as Justice O’Connor accurately noted in her 

9 dissenting opinion, joined by the Chief Justice and 

10 Justices Scalia and Thomas, the Court has ‘‘effec11 tively . . . delete[d] the words ‘for public use’ from 

12 the Takings Clause of the Fifth Amendment’’ and 

13 thereby ‘‘refus[ed] to enforce properly the Federal 

14 Constitution’’. 

15 (9) Under the Court’s decision in Kelo, Justice 

16 O’Connor warns, ‘‘[t]he specter of condemnation 

17 hangs over all property. Nothing is to prevent the 

18 State from replacing any Motel 6 with a Ritz19 Carlton, any home with a shopping mall, or any 

20 farm with a factory’’. 

21 (10) Justice O’Connor further warns that, 

22 under the Court’s decision in Kelo, ‘‘[a]ny property 

23 may now be taken for the benefit of another private 

24 party’’, and ‘‘the fallout from this decision will not 

25 be random. The beneficiaries are likely to be those 
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1 citizens with disproportionate influence and power in 

2 the political process, including large corporations 

3 and development firms. As for the victims, the gov4 ernment now has license to transfer property from 

5 those with fewer resources to those with more. The 

6 Founders cannot have intended this perverse result’’. 

7 (11) As an amicus brief filed by the National 

8 Association for the Advancement of Colored People, 

9 AARP, and other organizations noted, ‘‘[a]bsent a 

10 true public use requirement the takings power will 

11 be employed more frequently. The takings that re12 sult will disproportionately affect and harm the eco13 nomically disadvantaged and, in particular, racial 

14 and ethnic minorities and the elderly’’. 

15 (12) It is appropriate for Congress to take ac16 tion, consistent with its limited powers under the 

17 Constitution, to restore the vital protections of the 

18 Fifth Amendment and to protect homes, small busi19 nesses, and other private property rights against un20 reasonable government use of the power of eminent 

21 domain. 

22 (13) It would also be appropriate for States to 

23 take action to voluntarily limit their own power of 

24 eminent domain. As the Court in Kelo noted, ‘‘noth25 ing in our opinion precludes any State from placing 
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1 further restrictions on its exercise of the takings 

2 power’’. 

3 SEC. 3. PROTECTION OF HOMES, SMALL BUSINESSES, AND 

4 OTHER PRIVATE PROPERTY RIGHTS. 

5 (a) IN GENERAL.—The power of eminent domain 

6 shall be available only for public use. 

7 (b) PUBLIC USE.—In this Act, the term ‘‘public use’’ 

8 shall not be construed to include economic development. 

9 (c) APPLICATION.—This Act shall apply to— 

10 (1) all exercises of eminent domain power by 

11 the Federal Government; and 

12 (2) all exercises of eminent domain power by 

13 State and local government through the use of Fed14 eral funds.

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