Looking on the bright side of Kelo: Pacific Legal Foundation, 6/24/05

By Timothy Sandefur

Kelo is, obviously, a deplorable example of what happens when we start tinkering with property rights to begin with. Once someone says “it’s okay to steal the property of a rich man and give it to a poor man,” it’s not long before the rich man figures out how to exploit that power himself. This is what explains the apparent paradox of the supposedly liberal members of the Court writing an opinion that vastly expands the opportunities for corporate welfare programs at the expense of the poor and underrepresented. The only solution to this problem is to take property rights seriously for everybody, and to recognize the fact that government has no business stealing things from people who earn them, and giving them to people who do not—white or black, rich or poor, politically powerful, or politically weak.

That being said, there is room for optimism. Kelo really does little that Berman v. Parker, 348 U.S. 26 (1954), did not already do. Berman was an obscenity—a bitter decision written by one of the Court’s greatest antagonists to property rights, that asserted such explosive dicta as “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive,” id. at 32—and it was unanimous.

Hawaii Housing v. Midkiff, 467 U.S. 229 (1984), was almost as deplorable. There, the Court held that public use is “coterminous with the scope of a sovereign’s police powers,” id. at 240, meaning that the clause provided no more protection than the Due Process clause already does. And of course, that involved a practically insurmountable degree of judicial deference: “There is, of course, a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use...[b]ut...it is ‘an extremely narrow’ one.... [D]eference to the legislature’s ‘public use’ determination is required ‘until it is shown to involve an impossibility....’ [W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” Id. at 241. And it was unanimous.

Unless I’m seriously mistaken, Kelo represents the first time since the Civil War that any Justice of the Supreme Court has ever seriously defended the proposition that the Public Use Clause limits the power of eminent domain. This, I think, is reason for optimism. Not only that, I don’t even know of any lower court decisions that criticize Berman outright. I think it is a genuine accomplishment to have four members of the Court so severely criticize cases that are unquestionably controlling, unanimous, and so extremely opposed to the dissenters’ point of view.

Consider—Berman was unanimous and its holding crystal clear. The same can’t even be said of such atrocities as Dred Scott, Korematsu, Plessy, or Nebbia. Can you imagine, fifty years after the holdings in those cases, four justices writing as powerful a dissent challenging those cases? I cannot.

There’s all this talk about the property rights revolution being dead. While it’s true that talk of such a “revolution” was quite overblown to begin with, and that cases like San Remo, Lingle, and Kelo, were all losses for property owners, we can’t lose sight of the fact that legal revolutions start slowly. Justice Field’s dissent in Slaughterhouse was eventually to (more or less) win the day; Justice Holmes’ dissent in Lochner (which nobody joined at the time) was eventually to prevail. In Kelo, we have managed to persuade almost half of the court that the Public Use Clause is meaningful—a proposition that the Supreme Court has never embraced before, and has resoundingly and unanimously rejected in the past.

Making lemonade? Sure. Kelo is a severe loss, and is execrable constitutional interpretation. But baby steps, people. Baby steps.

Timothy Sandefur: tms@pacificlegal.org