Kelo v. New London

Two thoughts about today's Supreme Court decision in Kelo v. New London, which allowed a Connecticut city to seize private property for a development plan wherein the private property would be used by other private citizens, even though the Takings Clause specifies that property can be taken only for a "public use."

1. Justice Thomas's opening paragraph in his dissent is particularly stinging:

Long ago, William Blackstone wrote that “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “'[P]ublic [P]urpose’” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

2. Watch carefully to see whether groups such as People for the American Way correctly portray this decision as one in which conservatives favored civil rights while liberals were effectively opposed. The Takings Clause protects a "civil right" as much as anything else in the Constitution. And it should particularly protect the "civil right" to keep your family home when someone else wants to give it to the Pfizer Corporation.