The Best of Lee: Kelo Anniversary

Ten years ago today, the Supreme Court issued out of the worst ruling in their history: Kelo v. City of New London, in which justices Kennedy, Souter, Ginsberg, Breyer and Stevens decided that it was “public use” for a government to force a citizen to sell his property to a rich developer. Because taxes.

Here’s some choice quotes from the wonderful dissents of Clarence Thomas and Sandra Day O’Connor. Thomas first:

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent.

The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending 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.


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.

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

The irony is that the deal with Pfizer fell through and Kelo’s former home is still an empty lot.

Lee’s comment was short and brutal:

Personally, I would love to see one of the homes of these justices earmarked for demolition because some douchebag on a city council somewhere has decided that the revenue from a new Wal-Mart Supercenter is more important to the community than the property tax being paid on the land that has been in your family for six generations. Simply disgusting. When the highest court in the land wipes its ass on a concept as fundamental to human liberty and dignity as the right of property there is something seriously wrong with our government.

The government’s assault on property rights has only gotten worse. Yesterday, SCOTUS pushed back a little. But it will not really begin until the Court repudiates Kelo.

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  1. Christopher

    I still can’t comprehend how anyone, least of all liberals and progressives (who claim to be champions of the rights of the poor) can agree with this horrid decision.  Even worse is that there are people who worship the state so much that they can’t see how this runs afoul of the Constitution.  The only question that I have is this: Can any act of Congress overturn this, or does that have to be done by the Supreme Court?  In any case, here is a list of a few other terrible Supreme Court decisions:

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  2. richtaylor365

    I still can’t comprehend how anyone, least of all liberals and progressives (who claim to be champions of the rights of the poor) can agree with this horrid decision.

    Simple, they get a twofer (more tax revenue-those entitlement programs don’t pay for themselves, and more union backed jobs- keeping their squeakiest wheel greased with more dues dollars and influence).

    Progressives have always taken the “collective” road over that of the individual, they know what is best of the rest of us.

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