25 Pages Posted: 24 Sep 2006
In Kelo v. New London, the United States Supreme Court held that the Fifth Amendment does not forbid states from using eminent domain to condemn homes and businesses and transfer the property to private parties to use for their own profit. But the Court acknowledged that state constitutions can provide greater protection for property owners than does the federal Constitution. Michigan's Supreme Court has already held that that state's Constitution forbids such takings because they are not for public use. Washington and Arizona also have constitutional provisions specifically forbidding takings for private use. But even where a state constitution's language is identical to the federal Constitution, it may have a different meaning, given that state's unique history and legal development.
In this article, I argue that the Texas Constitution forbids Kelo-style takings for economic development. I examine the records of the state's several constitutional conventions as well as the development of case law over the history of the state. Until the 1940s, the state observed a strict prohibition on condemnations that benefited private parties. Then, in two cases riddled with fundamental legal errors, the Texas Supreme Court adopted a more expansive interpretation of public use. In addition to exposing the errors of these cases, I explain why they still do not authorize the use of eminent domain for economic development in Texas.
Keywords: Kelo, eminent domain, property rights, public use
JEL Classification: K11
Suggested Citation: Suggested Citation
Sandefur, Timothy, Don't Mess with Property Rights in Texas: How the State Constitution Protects Property Owners in the Wake of Kelo. Real Property, Probate and Trust Journal, Vol. 41, p. 43, Summer 2006. Available at SSRN: https://ssrn.com/abstract=932090