II 

112TH CONGRESS 

2D SESSION S. 3334 

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 21, 2012 

Mr. CORNYN (for himself and Mr. PAUL) 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 2012’’. 

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, 545 U.S. 469. 

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 ‘‘refuse[d] to enforce properly the Federal 

14 Constitution’’. 

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

16 O’Connor warns, ‘‘The 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, ‘‘Any 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 re7 sult.’’. 

8 (11) It is appropriate for Congress to take ac9 tion, consistent with its limited powers under the 

10 Constitution, to restore the vital protections of the 

11 Fifth Amendment and to protect homes, small busi12 nesses, and other private property rights against un13 reasonable government use of the power of eminent 

14 domain. 

15 (12) It would also be appropriate for States to 

16 take action to voluntarily limit their own power of 

17 eminent domain. As the Court in Kelo noted, ‘‘noth18 ing in our opinion precludes any State from placing 

19 further restrictions on its exercise of the takings 

20 power.’’. 

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

22 OTHER PRIVATE PROPERTY RIGHTS. 

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

24 shall be available only for public use. 


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

2 shall not include economic development. 

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

4 (1) all exercises of eminent domain power by 

5 the Federal Government; and 

6 (2) all exercises of eminent domain power by a 

7 State or local government using Federal funds. 

Æ 


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