Commentary Magazine


Topic: Kelo

“Kelo”: The Shame of a Nation

When Sarah Palin was criticized for her inability to answer a series of questions in interviews after her selection as John McCain’s running mate, various commentators each had the one that bothered them the most. The one that caught and held my attention was when Palin was asked which Supreme Court decision–other than Roe v. Wade–she disagreed with. I wasn’t bothered so much by a supposed lack of judicial expertise but rather reminded that conservatives have been too negligent in their outrage at one ruling in particular: the 2005 Kelo decision.

That was when the Supreme Court shredded property rights by upholding a Connecticut town’s eminent domain seizure of private property to transfer to a developer under the guise of improving blighted neighborhoods and thus fulfilling the “public use” requirement under the Fifth Amendment. It’s bunk, of course. I would like to be able to expect conservatives not simply to mention Kelo when asked what non-Roe decision they oppose, but to hiss the words through gritted teeth, preferably with smoke rising from their ears. Kelo was indefensible, an assault not simply on the Constitution but on the pillars of a free society, and a nation that forgets or excuses the high court for its role in this travesty should be ashamed of itself.

I’ve been reminded of this yet again by two very good pieces on the upcoming ninth anniversary of Kelo, one on National Review Online and one in the Weekly Standard, which recount the case and focus on the infuriating fact that the land in question lies empty, a flat monument to loathsome abuse of power and the toxic combination of governmental incompetence and contempt for the law. The essence of the case is that the government is able to forcefully purchase property if its new purpose is for the “public use.” For some time, this phrase was taken literally–land for a rail line, a public road, etc. Justice Stevens’s decision for the majority is a pristine example of how rights can be eroded over time by governmental discretion:

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When Sarah Palin was criticized for her inability to answer a series of questions in interviews after her selection as John McCain’s running mate, various commentators each had the one that bothered them the most. The one that caught and held my attention was when Palin was asked which Supreme Court decision–other than Roe v. Wade–she disagreed with. I wasn’t bothered so much by a supposed lack of judicial expertise but rather reminded that conservatives have been too negligent in their outrage at one ruling in particular: the 2005 Kelo decision.

That was when the Supreme Court shredded property rights by upholding a Connecticut town’s eminent domain seizure of private property to transfer to a developer under the guise of improving blighted neighborhoods and thus fulfilling the “public use” requirement under the Fifth Amendment. It’s bunk, of course. I would like to be able to expect conservatives not simply to mention Kelo when asked what non-Roe decision they oppose, but to hiss the words through gritted teeth, preferably with smoke rising from their ears. Kelo was indefensible, an assault not simply on the Constitution but on the pillars of a free society, and a nation that forgets or excuses the high court for its role in this travesty should be ashamed of itself.

I’ve been reminded of this yet again by two very good pieces on the upcoming ninth anniversary of Kelo, one on National Review Online and one in the Weekly Standard, which recount the case and focus on the infuriating fact that the land in question lies empty, a flat monument to loathsome abuse of power and the toxic combination of governmental incompetence and contempt for the law. The essence of the case is that the government is able to forcefully purchase property if its new purpose is for the “public use.” For some time, this phrase was taken literally–land for a rail line, a public road, etc. Justice Stevens’s decision for the majority is a pristine example of how rights can be eroded over time by governmental discretion:

On the other hand, this is not a case in which the City is planning to open the condemned land–at least not in its entirety–to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.”

The excuses! We once had a consensus on public use, which amounted to: words have meaning. The courts now admit that, well, words are pregnant with meaning, aren’t they? A test of rights that would be “difficult to administer” becomes justification to discard those rights. Constitutional rights prove “impractical,” because of the “always evolving needs of society.” And who better than the government to interpret which rights go out the window when the “needs of society”–as divined by pompous politicians at the top of local political machines given unconscionable imprimatur of the United States Supreme Court–assert themselves?

I should like to know what other rights are “impractical.” The obvious response to this ridiculous display of state power is: if you think governing according to the Constitution and the God-given rights of a free people is too difficult, then get out of government. And don’t let the door hit you on the way out. Instead, the court seems to sympathize. The state is taking from the poor and giving to the rich, in most cases and almost by definition of this interpretation. But according to the court, the victims here just don’t understand that their further impoverishment and displacement so the government can give their property to those they prefer have it is really about the “always evolving needs of society.”

In 1999, the esteemed historian of Russia Richard Pipes took a break from his usual work to publish a book called Property and Freedom. “The subject of this book differs from that of every book I have ever written, all of which (apart from a college textbook on modern Europe) have dealt with Russia, past and present,” Pipes wrote. “And yet it grows naturally out of my previous work. … In the case of Russia, it is not the presence but the absence of property that is taken for granted.”

Pipes notes that the Western understanding of property has expanded from tangible assets to intellectual property. But it didn’t stop there. He explains that “in Western thought during the seventeenth and eighteenth centuries it acquired a still more comprehensive meaning to include everything that one can claim as one’s own, beginning with life and liberty. The whole complex of modern ideas connected with human rights has its source in such an extensive definition of property. This was noted two hundred years ago by James Madison.”

He goes on to quote Madison to that effect. Respect for private property rights is an essential foundation for a free society–and our Founders knew it and said so. The court’s decision in Kelo looks worse with every passing year, and we shouldn’t forget it for a moment.

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