Your Property Will Be Better Off In My Hands

There is a lot of blogosphere buzz about the Supreme Court’s Kelo decision allowing a municipality to condemn homes for a private development project that fits the government’s development plans and promises to generate more tax revenue than the existing uses. The controlling language, of course, is the Fifth Amendment, the last clause of which says, “nor shall private property be taken for public use, without just compensation.” What constitutes a “public use” has long been debated, but the Kelo decision is not, I think, outside the mainstream of recent case law. The courts have generally deferred to state and local governments in deciding what benefits the public.
Here in Minnesota, we have had a couple of famous cases that have stretched the boundaries of “public use” at least as far as Kelo. In one instance, a block in downtown Minneapolis was condemned so that a local company could build its new corporate headquarters there. Thriving businesses who had no desire to sell out were evicted, and their buildings razed. In another instance, a Minneapolis suburb condemned a stretch along the metropolitan area’s major beltway to serve as the new headquarters for Best Buy Company. This was prime real estate, which was already occupied by other profitable businesses–a major car dealer, restaurants, etc. They resisted the taking, but it was upheld.
My point is not that these decisions were correct–I have considerable sympathy for the other side–but rather that the Kelo decision shouldn’t come as a shock to anyone who has been following this area of the law.
There is a sense in which it is perfectly logical to say that the democratically elected branches of government are in the best position to decide what is a legitimate “public use,” and the courts shouldn’t second-guess those decisions. And in many contexts, we conservatives do argue that the courts should defer to legislatures and local governments. The problem here is that accepting that principle would read the relevant language out of the Fifth Amendment. If anything that a state legislature or city government calls a “public use” is, ipso facto, a public use, then the constitutional protection is gone.
My only other observation on the case is this: I defer to no one in my admiration for Glenn Reynolds, but I don’t understand why he seems to think that the issue is a wash as between liberals and conservatives. Just look at how the decision broke down: Justices Stevens, Kennedy, Souter, Ginsburg and Breyer–the Court’s liberals–voted to uphold the taking, while O’Connor, Rehnquist, Scalia and Thomas dissented. I don’t see how the ideological lineup could be clearer; if you care about property rights, vote for conservatives.
It occurs to me, too, that the Court’s minority has by far the more politically palatable position. It will be interesting to see whether the “public use” issue becomes a factor in the donnybrook that is brewing over the next Supreme Court nominee.
UPDATE: Bob Cunningham adds: “[T]he irony is that the case defers to the political process in Connecticut, where the governor has just been convicted of malfeasance from undue influence by….real estate developers!”


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