June 26, 2005
Where I stand on Kelo ::
legal — tagged conlaw, fifth amendment, legal, politics and SCOTUS
4:37 pm
So, if you read any of the legal blogs in the past week, you’ve probably seen a lot of discussion about the Supreme Court’s decision in Kelo v. City of New London. In that case, the Court decided that economic development was within the defintion of “public use” in the takings clause of the Fifth Amendment, and therefore the City of New London had the authority to seize private property and transfer it to Pfizer, so it could in turn “build a $300 million research facility” on the property.
I am conflicted somewhat about the decision, but I agree more with the conservative dissenters in this case than I do with the liberal majority. My reasoning is almost identical to that found over at Legal Fiction, that “the constitutional text in question…in Kelo explicitly restricted [the] power” of legislatures to take property from citizens. Like Legal Fiction’s anonymous author, I believe the Constitution requires the judiciary to review with heightened scrutiny any government action that goes beyond a constitutional restriction of governmental power. The problem with Kelo, then, is that despite the clear restriction on governmental power in the Fifth Amendment, the Court decided to be deferential to governments that engage in eminent domain seizures. According to Kylo, governments should have such power because they know what’s best for their constituents. But this is wrong headed, for the simple reason that when government is restricted by a provision in the Constititution, that same government should not have the power to determine how its power will be limited.
Secondly, although the opinion does facilitate a liberal/progressive agenda of spurring economic development in historically depressed areas, it ignores another—and, I would argue, far more important—tenet of progressive constitutional jurisprudence: that the Constitution was intended to protect those who lack poltical power. And when you’re in the realm of economics (which is what the takings clause deals with, i.e., property) the politically powerless are, of course, the poor. Justice Thomas (of all people) noted this problem in his dissent:
[E]xtending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,� United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.
Although it’s a little strange I find myself in agreement with Justice Thomas, I have to say that he did get it right there. Like I said, I am a strong believer in economic redevelopment and the potential it has for turning around historically depressed areas. But like all other government action, government-led economic development cannot displace the individual rights of the people it was intended to help. Had Kelo been decided differently, governments like the one in New London would be forced to protect the rights of its citizens; more importantly, they would be required ensure that its eminent domain seizures were in fact exercised for the public good. Under this opinion, that simply will not happen.
