In earlier posts based on my new book about Kelo v. City of New London, I explained why I wrote the book in the first place, and the story of how an obscure eminent domain case reached the Supreme Court and became . In this post, I explain why the Kelo decision was wrong, emphasizing two flaws that should trouble adherents of a wide range of different approaches to constitutional theory. The next post in the series, will cover why it is wrong from the specific perspectives of originalism and living constitutionalism.

I. Putting the Wolves in Charge of the Chicken Coop.

Kelo upheld the condemnation of fifteen residential properties in New London, Connecticut for transfer to a new private owner in order to promote “economic development.” Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that virtually any potential public benefit – even if the government cannot prove that the expected development will ever actually happen.

The majority reiterated the longstanding principle that the Fifth Amendment grants property owners a right not to have their land condemned for a purpose that isn’t a public use. But it left the definition of what counts as a public use almost completely to the government. The Court’s position gives state and local governments the power to determine the scope of an individual right guaranteed by the Bill of Rights, with almost no judicial scrutiny.

There is a deep contradiction here. The whole point of enshrining a right in the Bill of Rights is to prevent the government from violating it. If the very government that the right is supposed to protect us against gets to define the scope of the right, that defeats the purpose of having it in the Constitution in the first place. It is much like letting a committee of wolves set the rules governing access to a chicken coop.

No other right included in the Bill of Rights is left to the mercy of the state in this way. As Justice Clarence Thomas puts it in his Kelo dissent, the Supreme Court does not defer to the legislature “when the issue is only whether the government may search a home” under the Fourth Amendment. But deference becomes the order of the day when the issue is “whether the government may take the infinitely more intrusive step of tearing down… homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does… that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.”

The Court’s stance might be understandable if the people whose homes or businesses are targeted for condemnation could effectively fend for themselves in the political process. But, in reality, most of them are poor or politically weak, and – like the Kelo plaintiffs – have little ability to defend themselves against the more powerful interest groups who benefit from private-to-private takings. Since the broad interpretation of public use became dominant in the mid-twentieth century, several million people have been forcibly displaced by economic development, urban renewal, and blight condemnations, most of them poor, racial and ethnic minorities, and short on political power.

In fairness, the Court’s ultradeferential approach was consistent with precedents going back to the 1954 case of Berman v. Parker. In the book, I argue that the Court should have simply overruled Berman. But if it was unwilling to do so, it could have narrowed Berman’s scope without overruling it completely, as Justice Sandra Day O’Connor urged in her less-sweeping dissent. O’Connor advocated that the Court forbid “economic development” takings, but permit private-to-private condemnations in cases where the preexisting use of the condemned land was somehow harmful (as when it is blighted or a threat to public health). That interpretation of public use has been adopted by several state supreme courts applying the public use clauses of their state constitutions. O’Connor’s approach has its flaws, which I discuss in the book. But it is much better than the majority’s near-total negation of the Public Use Clause.

II. Misinterpreting “More than a Century” of Precedent.

Justice John Paul Stevens’ majority opinion in Kelo relies heavily on the claim that it is based on “more than a century” of precedent. That assertion is simply wrong. The nineteenth and early twentieth century cases cited by Justice Stevens and others as support for extreme judicial deference under the Public Use Clause in fact addressed public use challenges under the “Lochner-era” doctrine of “substantive” due process applying the Due Process Clause of the Fourteenth Amendment. During that period, the Supreme Court had not yet recognized that the Fifth Amendment applied against state government. The only way for property owners to challenge a state or local government taking in federal court was under the Due Process Clause. Fallbrook Irrigation District. v. Bradley (1896), one of the leading cases from this era cited by Stevens unequivocally states that the constitutional issue it addresses “is based upon… the fourteenth amendment of the constitution,” and that the Fifth Amendment “applies only to the federal government.”

Federal courts applying the Due Process Clause to state takings during this period were relatively deferential. But the Court also made clear that a tougher standard of judicial review applies in cases where the Fifth Amendment actually did apply. Even under the Due Process Clause, the early twentieth century Supreme Court was not as deferential as Stevens’ Kelo opinion. In Clark v. Nash (1905) (another case relied on by Stevens), the Court specifically noted that “we do not desire to be understood by this decision as approving of the broad proposition that private property may be taken in all case[s] where the taking may promote the public interest”

To his credit, Justice Stevens has actually admitted this error in his Kelo opinion. In a 2011 speech on Kelo, he called it an “embarrassing to acknowledge” mistake. He now recognizes that the nineteenth and early twentieth century rulings he relied on “were Fourteenth Amendment substantive due process cases” (though he continues to believe that he got the bottom-line result in Kelo right).

Some defenders of the Kelo decision justify it on the ground that it was necessary to avoid the resurrection of Lochner-like economic “substantive due process.” But it was actually the Kelo majority that unjustifiably extended the reach of Lochner-era due process precedents by mistakenly applying them to the Public Use Clause of the Fifth Amendment. A decision reversing Kelo could reestablish a clear distinction between public use and substantive due process cases, and thereby prevent the latter from exercising any undue influence on the former.

Justice Stevens’ misinterpretation of the substantive due process cases does not by itself prove that Kelo was wrong. But it does undercut claims – often repeated by leading academic defenders of Kelo – that the ruling was justified by a century of precedent over many generations. The actual precedential support for Kelo is limited to Berman and other cases based on it – most of them decided at the nadir of judiciary’s respect for property rights during the decades after the New Deal. Precedent-oriented judges and commentators might be less willing to endorse the result in Kelo, if they recognize that its true precedential basis relies mainly on broad, largely unsupported statements in much more recent decisions.