Thoughts on Kelo

Sorry for the late post on this case, but I was out of town in depositions when Kelo was released. I was not surprised reading the opinion and most of us have come to expect such rulings from the High Court. There was a time, of course, that property rights were accorded more respect.

In the years after ratification of the Bill of Rights, Supreme Court justices viewed the preservation of property as a primary object of American law. Justice William Paterson in Vanhorne's Lessee v. Dorrance (1795), averred that "the right of acquiring and possessing private property, and having it protected, is one of the natural, inherent and inalienable rights of man." Justice Samuel Chase declared in Calder v. Bull (1798) that an act taking property from A and giving it to B "is against all reason and justice" and is thus prohibited by the Constitution.

State judges agreed with their federal colleagues. For example, in Bowman v. Middleton (1792), the South Carolina supreme court held that legislative acts transferring property from one person to another are "void" because they violate common right and Magna Charta.

But now, if an owner does not make maximum productive use of his property, government is empowered to transfer the property to another person. Supposedly this is a public purpose. Of course, the phrase "public purpose" does not appear in the Fifth Amendment but the words "public use" do. As Justice Clarence Thomas noted in dissent, the text of the Amendment permits the taking of property "only if the public has a right to employ it" (e.g., public roads, public parks, etcetera). Taking Ms. Dery's home so private parties can erect an office building or hotel is not a public use.

Aside from violating the fundamental law of the Constitution, Kelo subverts the free market's system of voluntary exchange. Prior to Kelo, if Corporation X, for example, desired to purchase a parcel of land to build a hotel, it had to make a satisfactory offer to the owner. If the parties agreed on a price, a voluntary transaction resulted in which both parties felt they benefited. Under Kelo, if the property owner does not agree to Corporation X's terms, then Corporation X has the option of persuading the government to exercise the power of eminent domain. Corporation X need only allege that its proposed hotel will be a more productive use of the property.

Some of you will accuse me of being a "fair weather federalist." Shouldn't state governments have broad authority in these issues? As an academic matter, I believe that incorporation of the Bill of Rights is judicial hocus pocus. As Justice Marshall noted in Barron v. Baltimore, the Bill of Rights does not apply to the states. Thus, in my preferred world of constitutional analysis, Kelo would be a state law matter settled in state courts or state legislatures.

As a matter of reality, the Fifth Amendment applies to both the national and state governments. The Supreme Court's deletion of "public use" from the Amendment empowers both sets of sovereigns. Most agree that the national government may excrcise the power of eminent domain via the Necessary and Proper Clause if it is incidental to an enumerated power. For example, incident to its power to raise armies, Congress may exercise the power of eminent domain so the soldiers will have land for a base. Hence, the Court's Kelo decision increases the powers of both the state and federal governments--it is not limited to state takings. All good federalists should oppose this judicial augmentation of Congress's powers.