Friday, July 28, 2006

Kelo Revisited

Larry Kudlow comments about Kelo, in light of two recent decisions by the supreme courts of Oklahoma and Ohio:

Kelo was a dreadful decision.

It had anti-private property rights, anti-capitalist and anti-growth stains all over it, and the political system is repudiating it (as it should) just about everywhere.

Oklahoma’s Supreme Court repudiated it, now comes Ohio’s highest court, in addition to almost twenty states which have passed laws protecting property rights.

To put it simply: Kelo was un-American.

Kelo, in case you need a reminder, was decided by the U.S. Supreme Court in its October 2004 term. A 5-4 majority of the Court (led by Justice John Paul Stevens) upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The majority's rationale, in brief:

  • The city's redevelopment plan serves a public purpose under the "takings clause" of the Fifth Amendment because the plan enables the city to generate higher tax revenues.
  • The Court should defer to the judgment of the States and their political subdivisions as to what constitutes a public purpose. (The majority wrote that "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.")
  • In other words, the "takings clause" does not really apply to the States.

Not only is Kelo un-American -- in the best, libertarian sense of that term -- it is flat wrong. Note, for instance, the logical inconsistency in the majority's finding. If the propriety of takings really is a matter for States to decide -- as the majority would have it -- there was no need for the Court to enter a judgment about the compliance of New London's condemnation with the Fifth Amendment. All the Court needed to do was to upheld the City of New London's actions, without determining their appropriateness under the "takings clause."

Some libertarian commentators (e.g., here and here) have gone so far as to argue that Kelo was rightly decided because it upholds the principle of federalism. I wonder how they feel about Dred Scott?

Kelo was wrongly decided, in part, because Barron v. Mayor & City Council of Baltimore (1833), was wrongly decided. In that case, Chief Justice John Marshall opined that the Fifth Amendment is not binding on the States. As I explain here, the Fifth Amendment (all of it) was meant to apply to the States as well as to the federal government. Kelo also was wrongly decided because the meaning of the "takings clause" has been corrupted. As Justice Clarence Thomas wrote in his dissent from the Kelo majority,

. . . I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

Given all that, it is wrong for the U.S. Supreme Court to defer routinely to the takings of State and local governments, as if those takings are not a matter for federal scrutiny under the Fifth Amendment. Further, it is incumbent on the U.S. Supreme Court to reject takings by State and local governments whenever those takings are not for actual public use of property.

The Kelo majority shirked its constitutional duty when it deferred to the City of New London's blatant seizure of private property for a private use. The majority's opinion was nothing but a flimsy pretext to favor the collective over the individual and to flout property rights.