Contributor, The Volokh Conspiracy

In my last post based on my new book on Kelo v. City of New London, I outlined some flaws in the Kelo decision that cut across conventional divisions in constitutional theory. In this one, I explain why it was wrong from the specific standpoints of both originalism and living constitutionalism. Not many important Supreme Court rulings manage to run afoul of such widely disparate theories. But Kelo is one of them.

I. The Originalist Case Against Kelo.

The Kelo majority ruled that virtually any potential public benefit qualifies as a “public use” authorizing the condemnation of property under the Fifth Amendment – even if the condemned property is transferred to a private owner, and even if the government cannot prove that the supposed public benefits will actually be achieved. This broad interpretation of “public use” is at odds with the original meaning of the term, which holds that a public use only exists if the condemned property is transferred to government ownership (as in the case of public infrastructure such as roads and bridges) or a private owner that is legally required to serve the entire public, such as a public utility or common carrier.

There was only limited discussion of public use at the time the Fifth Amendment and the rest of the Bill of Rights were enacted in 1791, in part because the Bill of Rights only applied against the federal government, and Congress was not, at that time, understood to have a general power of eminent domain. But leading jurists of the Founding era generally agreed that legislatures lacked the power to condemn property for transfer to ordinary private owners. As Supreme Court Justice Samuel Chase famously put it in his 1798 opinion in Calder v. Bull, “[A] law that takes property from A. and gives it to B. . . . is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it…To maintain that our Federal, or State, Legislature possesses such powers… would… be a political heresy, altogether inadmissible in our free republican governments.” Similar principles were expounded by John Locke, William Blackstone, and other 17th and 18th century British authorities on law and natural rights, who heavily influenced the Founders. Both Locke and Blackstone explicitly distinguished between takings that transfer property to private parties and those that transfer it to government ownership, arguing that only the latter were legally and morally permissible.

In addition, allowing the government to condemn property for virtually any reason would have been utterly at odds with the Founders’ emphasis on the importance of protecting property rights against majoritarian legislatures, which they saw as a major potential danger to the rights of owners. That view was especially firmly held by James Madison, the main drafter of the Takings Clause.

Many constitutional law scholars believe that, when the Bill of Rights is applied against state governments, it should be interpreted as understood in 1868, at the time when the enactment of the Fourteenth Amendment first made it applicable against the states. We have a great deal more evidence about the 1868 understanding of public use than the 1791 understanding, and most of that evidence supports the narrow interpretation rather than the broad one.

In years after the Founding, almost every state enacted a Public Use Clause in its state constitution very similar or identical to the federal one. By the the 1860s and 1870s, numerous state supreme courts had issued decisions interpreting those clauses. A clear majority of them adopted the narrow view of public use in preference to the broad one. The narrow view was also endorsed by leading mid to late 19th century treatise writers on constitutional law, most notably Supreme Court Justice Joseph Story, Michigan Supreme Court Justice Thomas Cooley (the leading 19th century authority on state constitutional law), and John Lewis (author of the first American treatise on eminent domain law). In the 19th century, treatises had a major influence on lawyers’ and political elites’ understanding of the law (far more than today).

Like modern critics of Kelo, nineteenth century jurists recognized that the broad interpretation of public use could justify virtually any taking, because almost any condemnation that transfers the land to a new owner might benefit the public in some conceivable way. Most courts and legal commentators considered this limitless authorization for takings a serious danger to property rights, and a strong reason to reject the broad view. As an 1884 Supreme Court of Ohio ruling put it, “[t]he prosperity of each individual condues, in a certain sense, to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.”

In the book, I explain in much greater detail why the narrow interpretation of public use is the correct one under a variety of different approaches to originalism, including original intent, and several different versions of original public meaning. It also prevails under both elitist and populist versions of originalism, and under several different originalist approaches to incorporating the Bill of Rights against the states.

II. The Living Constitution Case Against Kelo.

Leading versions of living constitutionalism also cut against Kelo. Perhaps the most influential living constitution theory is “representation-reinforcement,” the idea that courts should, where possible, interpret the Constitution in ways that protect racial minorities, the poor, and other groups who cannot effectively fend for themselves in the political process: the “discrete and insular minorities” referred to in the famous footnote four of the Carolene Products decision.

Blight and economic development takings of the sort upheld in Kelo and its leading precursor, Berman v. Parker, overwhelmingly victimize the poor, minorities, and others who lack political influence. The vast majority of the several million Americans forcibly displaced by by blight and economic development takings fall into those categories, often losing their property to politically influential business interests.

Many victims of eminent domain cannot even protect themselves by voting against the politicians who approved the takings. People forced out of the jurisdiction that condemned their homes cannot continue to vote in local elections. By the time the next election comes around, they are often no longer around to “vote the bastards out.” In that respect, they are even more politically powerless than minorities who at least retain the ability to use the vote.

Another currently influential version of living constitution theory is “popular constitutionalism,” the idea that judicial interpretation of constitutional rights should be influenced by the views of ordinary Americans and mobilized social movements, such as the civil rights movement. If there ever was a Supreme Court decision that went against the precepts of popular constitutionalism, it was Kelo. Polls show that over 80% of the public opposes the ruling, and that opposition cuts across ideological, partisan, racial, and other divisions.

Moreover, polls taken years after Kelo show virtually the same overwhelming majorities against it, as those conducted in the immediate aftermath of the decision. That suggests that opposition to it was not just an immediate kneejerk reaction. Advocates of popular constitutionalism point to the civil rights movement, the feminist movement, the gun rights movement, and – most recently -the gay rights movement, as examples of successful popular constitutional mobilization. Each of these movements has indeed attracted considerable support for its constitutional vision. But none has achieved such widespread backing as the opposition to economic development takings. No other constitutional movement unites people as varied as Rand Paul and Bernard Sanders, Rush Limbaugh and Ralph Nader, Tea Party conservatives and the NAACP.

In the book, I also explain why Kelo is wrong under several other prominent versions of living constitutionalism. These include “common law” constitutionalism, and Ronald Dworkin’s influential moral approach to constitutional theory.

Admittedly, there are some approaches to living constitutionalism that cut in favor of Kelo, most notably Thayerian deference, the idea that courts must uphold legislation against constitutional challenge unless there is no even minimally reasonable constitutional argument in defense of the law. But consistent adherence to Thayerian deference requires rejection of numerous decisions almost universally endorsed by modern living constitutionalists, including Brown v. Board of Education and Lawrence v. Texas.

Because of the enormous diversity of living constitution theories, I cannot say that all of them cut against Kelo. But the decision is nonetheless wrong under those theories that have attracted the most support among judges, legal scholars, and others.