"Judicial Activism"
The Forgotten Constitution

The Kelo decision, or, does property mean anything anymore?

What I think is the most important political lesson to be gained from Kelo is to recognize the fact that Justices Stevens, Ginsburg, Breyer, and Souter—the so-called “liberal” judges; judges often described as defenders of the common man, as opposed to Justices Thomas, Rehnquist, or Scalia, often called conservative defenders of corporate greed and power—were in the majority in upholding the ability of wealthy and powerful corporations to steal the homes of working class people for their own private profit. This outcome surprises only those who do not understand that property rights are the most fundamental of all rights, and are more important for the poor than for the wealthy. The wealthy, after all, can swing the political power to protect their interests. But the poor need courts that will respect and enforce their property rights.

The definition of a “right” is something that is not subject to political control; as Justice Jackson put it, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943). This is as true of property rights as of any other kind of rights: if you have to ask a bureaucrat’s permission to do something with your land, then it’s not really your land—you have only a permission, not a right.

Today’s decision in Kelo v. New London transforms property rights into brittle government permissions. This much should be absolutely clear: your home is for sale, whether you know it or not, to private developers able to lobby local government officials. If those officials decide to take your home and transform it into a Costco, or a Home Depot, or a Wal-Mart, they may do so at any time, subject only to annoying procedural hassles, but without any serious limitation by such a thing as property rights. Justice Stevens writes that:

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field....  [T]he needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power....

This, of course, is not at all what the Constitution actually says. It says that private property may only be taken for “public use,” and not for private use at all. To exploit government power to seize property for the benefit of some politically favored private group is the very definition of abuse—it undermines the entire purpose of government, in fact, as Madison made clear in Federalist 51: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.” After Kelo, it is clear that the Constitution places no meaningful restrictions on the government’s power to do just this: to seize the homes of political minorities and give them to political majorities.

Justice Stevens’ appeal to the “general benefit” produced by such redevelopment projects is a mirage. All government takings of private property can be colorably described as conveying some sort of general benefit on the public at large. This is particularly true of “redevelopment” projects, glossed over by flashy advertising by expensive public relations firms and sold to government agencies by slick professionals.

All government actions are already required to have some rational connection to public benefits anyway, under the Due Process Clause. Today’s holding says that the “public use” clause—despite its obvious literal meaning—means nothing more than the Due Process Clause’s rational basis interpretation. (For those paying attention, this violates the fundamental legal principle that constitutional language should not be rendered redundant or ineffective.) And as we all know, rational basis means anything goes.

Your right to property now hang on your ability to influence the political process. Rather than being “withdrawn from the vicissitudes of political controversy,” your home is now in the ring, to be bargained over by political parties and taken by the votes of city council members. In other words, we have returned to what Thomas Hobbes described as the intolerable state of nature in which “there [can] be no propriety, no dominion, no mine and thine distinct; but only that to be every man’s that he can get: and for so long, as he can keep it.” Thomas Hobbes, Leviathan 101 (M. Oakeshott ed., 1962) (1651).

You can read my brief in Kelo here.

Update: Justice O’Connor’s dissent begins with a fantastic passage:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

The only thing wrong with this is the penultimate word.