Kelo Turns One

by Don Boudreaux on June 25, 2006

in Law, Property Rights

This past Friday, June 23, was the first anniversary of the U.S. Supreme Court’s Kelo decision.  I commemorate that somber event in this op-ed that ran in Wednesday’s issue of Investor’s Business Daily.

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{ 10 comments }

Steven M. Warshawsky June 26, 2006 at 3:17 pm

Excellent article. In a few short paragraphs you exposed the "legal realist" understanding of rights for the nihilistic, totalitarian nonsense it is.

Half Sigma June 26, 2006 at 4:03 pm

I think you (and others opposed to Kelo) or focusing too much on the "public" issue.

If the state were to use eminent domain to build a public housing project, that would clearly fall under the public use requirement.

But I think it's FAR BETTER to have private housing developmetns as opposed to public housing projects.

Gman June 26, 2006 at 5:23 pm

Don, what about the argument that the US Supreme Court was merely deferring to state law (Connecticut in this case) on eminent domain? In other words, this is federalism at work. What are your thoughts on this line of argument?

Regarding your op-ed, I will pose another question based on arguments I hear from progressives/statists. Are private property rights so sacrosanct that they can't or shouldn't be regulated? Without zoning, for example, couldn't a neighbor of mine open a sexually oriented business (SOB)? Certainly, that would impact my quality of life, and impact the value of my property. Ironically, land use regulations can be used to protect private property rights. Of course, the property owner affected by an SOB next door could sue that property owner, but on what grounds? What is the cost? What is the chance for success? One might argue that the power of litigation is not a panacea for the abuse of an unregulated right. Your thoughts?

Senor Dilys June 26, 2006 at 7:57 pm

I find it surprising that much of the comentary on Kelo does not acknowledge that the principles followed by the Supreme Court in that case were established in Berman v. Parker, 348 U.S. 26 (1954). In Berman, the court held that private property could be taken and turned over to another private entitiy, as long as the government asserted that some public purpose was served by the taking. In Berman, the public purpose asserted was the elimination of blight, even though Berman's property was a thriving business and was not contributing to blight. The court held that it was not reasonable to limit the government to just taking blighted properties, on the grounds that centralized planning was necessary to have an effective program to eliminate blight. Consequently, this year we are actually memorializing the 52th anniversary of the proposition that private property can be taken and turned over to another private entity. Since most takings are made by local governments, the most feasible solution would be to get voters motiviated to insist that state legislatures enact laws precluding the more egregious examples of such takings, such as for economic development.

Swimmy June 27, 2006 at 12:46 am

Re: The "Federalism at work" argument

The court is meant to defer to the states those rights not enumerated in the Constitution. Those that are enumerated in the Constitution must be upheld by every branch of government. The natural right to own property protected from the hand of the state except for public use and with just compensation has effectively been eliminated. There is nothing in the doctrine of Constitutional Federalism that condones this.

Half Sigma June 27, 2006 at 2:15 pm

"Those that are enumerated in the Constitution must be upheld by every branch of government."

Actually, the original doctrine of the rights in the Bill of Rights is that they only apply to the federal government. See Barron v. Baltimore.

Swimmy June 27, 2006 at 3:49 pm

Sure, sure. But the 14th amendment arose to deal with the failings of the original doctrine. And, though there's some controversy over its ratification, I believe it strengthens the case for Federalism.

Half Sigma June 27, 2006 at 9:39 pm

The 14th Amendment arose to help Congress pass laws to protect the free slaves.

It wasn't until many decades later that the Supreme Court magically discvoered stuff in there which had never been there before.

In Hurtado v. California (1884), the Supreme Court reaffirmed that the Bill of Rights does not apply to the states.

Swimmy June 28, 2006 at 3:06 pm

Hmm. All right, you've got me. I'm obviously no law scholar.

abend August 31, 2007 at 4:36 pm

Public schools have to say, don't have to say the Pledge of Alliegence

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