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Some Kelo Links

On this tenth anniversary of Kelo v. City of New London – a detestable monument both to “Progressives'” contempt for the rights of ordinary people and to conservatives’ mindless habit of demanding judicial restraint – I offer here some links specially selected for this anniversary of that decision.

Ilya Somin, a brilliant GMU colleague over at the law school, penned in yesterday’s Wall Street Journal this excellent account of Kelo and its aftermath. (gated)  (See also here.  And here.)  A slice:

Although Kelo was a painful defeat for advocates of property rights, it led to important progress. The ruling generated an enormous backlash: More than 80% of the public disapproved of the court’s decision. The opposition cut across racial, partisan and ideological lines. Kelo was denounced by such unlikely bedfellows as Ralph Nader, Rush Limbaugh and the National Association for the Advancement of Colored People.

Also, do not miss Ilya’s superb new book on the Kelo ruling: The Grasping Hand.

And here’s a podcast with Ilya on the takings power.

Richard Epstein writes today in National Review.  Here’s his opening paragraph:

Ten years ago, on June 23, 2005, the United States Supreme Court dropped a judicial thunderbolt in Kelo v. City of New London. By a narrow five-to-four margin it rejected a spirited challenge that Susette Kelo and her neighboring landowners had raised against the ambitious land-use development plan put forward by the City of New London, Ct. The formulaic account of the holding is that a local government does not violate the “public use” component of the Constitution’s takings clause — “nor shall private property be taken for public use, without just compensation” — when it condemns property that will be turned over to a private developer for private development. Under the logic of Justice John Paul Stevens, so long as there is an indirect promised public benefit from the development process, the public-use inquiry is at an end, and Ms. Kelo can be driven out of her pink house by the water.

Damon Root writes at Reason.  A slice:

As for Justice John Paul Stevens [who wrote the majority opinion], he remains unrepentant about his central role in the Kelo debacle. In fact, in a 2011 speech, Stevens lashed out at several of his critics (including me), arguing that Kelo remains perfectly justifiable because it “adhered to the doctrine of judicial restraint” and was rooted in “Justice Oliver Wendell Holmes’ broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation.”

But why should the Supreme Court adhere to Justice Holmes’ toxic interpretation? Why not just follow the actual text of the Constitution? After all, Holmes is the same justice who once wrote, “a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell.”

Daren Bakst.  A slice:

Thanks to Kelo, if the government believes that another private party can make better economic use of a property, it can be seized. This problem is exacerbated because courts defer to government about whether something is a public use and whether a plan even makes sense. Justice O’Connor truly captured the extent of the problems with Kelo in her dissent, including this important point: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

S. Noble.

The editors of the Orange County Register.

Finally, here’s an essay that I wrote soon after the Kelo decision was released.  A slice:

Consider last week’s lamentable U.S. Supreme Court decision in the case of  Kelo v. City of New London (Conn.). In it, the Supreme Court (well, five of its members) ruled that local governments can seize property from private citizen A and give it to private citizen B if it, the government — the gaggle of force-specialists — declares publicly a belief that such seizures will create jobs and increase the amount of money the force-specialists will succeed in forcibly extracting from non-force-specialists.

Suppose that a majority of this very same group of nine black-robed worthies were to declare that I, a private citizen, can poke a gun in my neighbor’s nose and demand that he sell his house to me so that I can give or sell it to someone else.

The only condition demanded of this “court” is that I proclaim with as much sincerity as I can muster that my seizure of this house will “improve the neighborhood” and generate more income for me — more income that I promise, cross-my-heart-and-hope-to-die, to spend wisely on further efforts to improve the neighborhood.

Would you — would anyone — respect such a ruling of this “court”?

The only reason the City of New London and other governments have the audacity to seize the property of others, the only reason a “court” of seemingly adult and learned citizens upholds such seizures, and the only reason such a ruling and the seizures it permits will be widely respected, is that We the People believe, without warrant or reason, in the supernatural powers and essence of the state.

We worship and raise hosannas to force-specialists.