Acie Frizzell owns a couple of vacant lots in the City of Freeport. The city attorney has told her that if she won’t sell her lots as part of a planned economic development project, the city will condemn her land at the price of $100 per lot. The lots might then be turned over to a private developer.

On the other side of town, Wright Gore is the owner of Western Seafood Company. The city also wants to condemn part of his property – 330 feet along the old Brazos River – and turn it over to his next door neighbor to build a marina. Gore says the condemnation threatens the viability of his $40 million-a-year business.

Now that the U.S. Supreme Court has issued its decision in the Kelo case, the city says it will move “aggressively” to condemn this and other property necessary for the development.

“This is the last little piece of the puzzle to put the project together,” said Freeport Mayor Jim Phillips.

This “last little piece” is the ability of governments to ignore the U. S. Constitution’s plain language referring to “public use” and transfer the private property of one landowner to another for a “public purpose” using eminent domain.

The Kelo decision was rightly decried in dissent by Justice Sandra Day O’Connor as hanging “the specter of condemnation … over all property.” The decision produced similar reaction and surprise across the country.

Yet the decision should not be so much a surprise as a wakeup call. Kelo is really the logical conclusion to recent jurisprudence on the Constitution’s Public Use Clause.

The reaction could be a silver lining in the otherwise dark clouds. Just like the closeness of the 2000 presidential race led to a dramatic increase in voter turnout in the 2004 elections, Kelo could produce a resurgence of interest in the debate over private property rights.

The increased interest doesn’t come a minute too soon for property owners like Frizzell and Gore. Without the protection of the Public Use Clause, Texans are quite vulnerable to economic development takings of private property.

The Texas Constitution has a Public Use Clause very similar to its federal counterpart, and Chapter 21 of the Texas Government Code regulating eminent domain contains the same reference to public use as contained in both constitutions. However, other parts of Texas law appear to alter the definition of public use much like the Supreme Court has.

The Development Corporation Act of 1979 allows cities like Freeport to create economic development corporations that can exercise eminent domain powers for public purposes, including “the promotion and development of new and expanded business enterprises.”

Likewise, the Texas Urban Renewal Law allows cities to seize land for “urban renewal activities” such as “slum clearance, redevelopment, rehabilitation, and conservation activities” and then be sold to private investors. Fortunately, there are constitutional and legislative solutions to this problem at the federal and state level. U.S. Senator John Cornyn has proposed legislation to make clear that public use does not include economic development. State Rep. Frank Corte has proposed an amendment to the Texas Constitution that would prohibit the taking of private property for the primary purpose of economic development.

It is unfortunate that such effort must be expended toward restoring adherence by government to the bedrock constitutional principle that personal freedom is grounded in economic freedom, i.e., the ability to control one’s own property and labor.

The Michigan Supreme Court displayed an understanding of this last year when it unanimously overturned a 1981 case that had allowed Detroit’s Poletown neighborhood to be condemned and converted into a General Motors plant.

“We overrule Poletown,” wrote Justice Robert Young, “in order to vindicate our constitution, protect the people’s property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law.”

Economic freedom did not come easy for the American colonists, and it has not proven easy to maintain for American citizens. While we may feel burdened having to explain to politicians that ‘use’ means ‘use’ and not ‘purpose,’ ‘intent’ or ‘benefit,’ we should be grateful for this opportunity to participate in a revival of our most basic freedom.

Bill Peacock is the economic freedom policy analyst for the Texas Public Policy Foundation, an Austin-based non-profit, non-partisan research institute. He may be reached at [email protected].