Apparently some folks are pushing an Open Source Amendment in response to the recent Kelo decision on eminent domain. Don’t ask me why they use the term “open source” for this because it doesn’t seem applicable to me either Here’s the proposed text.

The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

The price-doubling in the last paragraph is probably what will kill this, since it’s pretty obviously just gouging for the sake of discouraging the government from doing even things that are beneficial. The thing I find really odd, though, is the part requiring that the government own or retain the “paramount interest” in seized property. I find it odd because of something that’s actually incorporated into the text of the Kelo decision, quoting from the earlier Berman case:

The public end may be as well or better served through an agency of private enterprise than through a department of government—or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.

That seems like a statement that would appeal to any True Believer in markets, or hater of big government. The Supreme Court of the United States, saying that sometimes the private sector can do something better than the government itself? Cool, huh? And yet, this Open Source Amendment would destroy that benefit by making it impossible to use the power of the market for the public good.

I’m no fan of Kelo, of course. I think it was a terrible decision, but this amendment seems like an equally terrible response. It doesn’t matter whether the government owns a seized property but whether the public benefits from it. The amendment is wrong on two points: government vs. the public, and ownership vs. benefit. I’ve argued before that the standard by which an exercise of eminent domain should be measured is whether it primarily benefits the public, but that’s not at all the same as whether the government retains ownership of the property. The amendment seems like no more than an attempt to take advantage of outrage over Kelo to push measures that have little to do with that decision’s faults, as part of a preexisting absolutist-property-rights agenda. Those pushing it should learn to present their views honestly and have them judged on their own merits instead of trying to hitch their wagon to someone else’s horse.