The notion of limited government took another enormous body blow today with the Supreme Court’s astonishingly wrongheaded decision in the Kelo case (see the text of the decision here). It was 5-4, with the 4 most conservative justices – Rehnquist, Scalia, O’Connor and Thomas – dissenting. There is grand irony here. Despite the common perception that liberals are for the “little guy” and conservatives are for “big business”, the liberal judges on the court just upheld the government’s power to take away someone’s property and give it to private development companies solely because the private developers will use it in ways that will boost the tax base, while the conservatives on the court offered a blistering and absolutely accurate dissent. What this means, essentially, is that you don’t really own your home and property. You only own it until someone else can convince the government that they can put it to better use, at which point they can take it from you and give it to someone else. It’s difficult to imagine a more flagrant violation of our founding principles than that.
I hope Timothy Sandefur, who spends his professional life battling such eminent domain policies, will weigh in on this. Since he has stopped blogging at Freespace, I’ll be happy to offer him space here to fisk this decision.
Is it overstating it to say that the entire experiment in limited government that we began 216 years ago with the passage of the Constitution may well have come to an end in the last few weeks with the double whammy of the Raich and Kelo decisions? If “interstate commerce” can be abstracted to give the government authority over activities that are neither interstate nor commerce, and if “public use” can be abstracted to cover private use, I dare say we have passed through Alice’s mirror into a Wonderland where words can mean whatever the Queen wants them to mean at any given time.
Other reactions to the decision are coming in. Radley Balko says:
The five most liberal justices on the court made up the majority, once again proving that today’s left is utterly devoid of any principle other than ensuring massive, all-encompassing, ever-growing government power. In this case, they’ll gladly side with huge corporations who collude with state and local government to screw powerless people out of the homes and property they’ve owned for generations. The corporations get cheap land below market value, and the local city council members get more tax money to throw around to win votes.
Julian Sanchez writes:
As Raich taught us that growing pot in your backyard for personal consumption is “interstate commerce,” Kelo informs us that taking people’s homes to hand over to private developers building an office complex is a “public use.”
You do wonder: Now that the “liberal” justices on the court have sided with the drug warriors against cancer patients, and with a plan to rob people of their homes for the benefit of wealthy developers, will some court-watchers on the left begin to question the wisdom of having let economic freedom become the red-headed stepchild of modern jurisprudence?
And here is Justice O’Connor’s dissent, summing up perfectly what has happened here:
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded-i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public-in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property-and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.
More as they come in.