Kelo Disappoints, But Shouldn’t Have Been a Surprise
The recent Supreme Court decision in Kelo v. City of New London,125 S. Ct. 2655 (2005) has been roundly criticized in public and political circles. The public was properly offended by the idea that the government could condemn a private property owner's home for the purpose of allowing it to be used by another private party. I was actually surprised by the strong dissent and the 5 to 4 vote. Don’t get me wrong. I don’t agree with the majority, but it did have some basis to observe:
"this 'Court long ago rejected any literal requirement that condemned property be put into use for the general public.' (citation). Indeed, while many state courts in the mid-19th century endorsed 'use by the public' as the proper definition of public use, that narrow view steadily eroded over time."
In property rights cases, conservatives are often swayed by the concept of necessary deference to local governing agencies. In this case, the majority emphasized “the ‘great respect’” that we owe to state legislatures and state courts in discerning local public needs.
Thus, the dual problem for property rights advocates in Kelo is the long standing erosion of the concept of “public use” from its common sense understanding and the unwillingness of the Courts to second guess a determination of a legitimate public interest by a local governing agency. The majority’s fifth vote came from Kennedy, who also wrote a concurrence to observe “transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.” This concurrence provides little solace because a “rational basis” standard would be applied and proving such a pretextual transfer under that standard is almost impossible without an outright admission by the governing agency. Kennedy did leave open the possibility that for some unidentified “economic” transfers, that a different standard of proof might apply. There were two dissents in Kelo. The O'Conner dissent, joined by Justices Rehnquist, Scalia and Thomas, asserted that Kelo involved a “private taking” barred by the Fifth Amendment, based on the conclusion that condemnation for “economic development” was not a “public use.” The dissent offers a powerful critique of the majority opinion, arguing it offers no meaningful limitation to the power of government to condemn private property:
"The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
Justice Thomas offered a separate dissent, agreeing with Justice O’Conner’s dissent that “[i]f such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution . . . ” Thomas’s dissent goes further, urging an originalist view of the public use language of the Fifth Amendment, which would limit condemnation powers of the government only for circumstances of actual use by the public. Thomas acknowledged that his view represented a departure from recent decisions, observing, “Our cases have strayed from the Clause's original meaning, and I would reconsider them.”
While the make-up of the Supreme Court is changing, the justices that have left or are leaving (Rehnquist and O’Conner) were among the two dissenters. Thus, I would not expect any change on this issue in the near future.