Property and privilege

The recent dreadful decision of the United States Supreme Court in Kelo v. City of New London held that New London could take the homes of ordinary citizens in the name of urban planning. It didn't seem to matter to the five-member majority that the city's porous redevelopment plan did not evince any intelligible purpose, let alone the public use that the Constitution requires.

The good news in the aftermath of Kelo is that it has forced people, especially on the political left, to rethink their views on the place of private property. Ever since the decisive and wrongheaded New Deal decisions in the mid-1930s, the Supreme Court has by and large held that the constitutional protections of private property should be read weakly so as to allow governments to act in ways that advance some notion of the common or public good. The underlying liberal vision was that private property was the instrument of individuals of privilege and power, which had to be cut down to size by an alert legislature that had the interests of the little man at heart. The liberal justices on the Supreme Court have accordingly done everything to give their blessing to local land use condemnation and regulation.

Kelo shows the utter fatuity in that position. There is of course every reason to believe that people with great wealth will use their power and influence to turn legislative decisions in their direction. But it hardly follows that private property is the villain of the piece. In many cases, the system of strong property rights works to protect people of limited wealth from the machinations of others. This defensive use of private property was evident to such philosophers as John Locke and such economists as Adam Smith. It impressed itself on this nation's Founders, who understood the risk that political factions put to the stability of our social order.

Here is one telltale sign of the massive amounts of political favoritism in Kelo. One common argument in favor of a broad use of the eminent domain power is that it is necessary to allow developers to assemble large parcels of land for major developments. But in Kelo the New London planners were quite happy to slate private homes for destruction while allowing the Italian Dramatic Club (a watering hole for local politicians) to remain untouched, even though it abutted one of the private homes that was taken.

Last year, the Michigan Supreme Court held that its state constitution blocked the use of the eminent domain power for so-called economic development. Other states are now falling into line. With a little bit of hard work, the instinctive revulsion toward the Kelo decision could lead to a groundswell of public action. But whatever the future brings, remember that the four dissenters--Rehnquist, O'Connor, Scalia, and Thomas--all so-called conservatives, were the defenders of the Constitution and the little man.

Hoover Institution Stanford University Stanford, CA 94305-6010 Tel: 877.466.8374 Fax: 650.723.1687 [email protected] www.hoover.org

Richard A. Epstein is a senior fellow at the Hoover Institution and a professor of law at the University of Chicago. He wrote an amicus brief on behalf of Kelo v. City of New London in the Supreme Court.

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