Third thoughts on Kelo

It’s nice to see that Powerline’s John Hinderaker is having second thoughts on the Kelo decision.

When the Supreme Court handed down its decision in Kelo v. City of New London a week or two ago, it was greeted with outrage by nearly everyone on the right, including us. However, a careful reading of the opinion and related case law, and some further investigation of the underlying facts, convinced me that reaction to the case was overblown.

My first thought after reading the opinion and related case law also convinced me that reaction to the case was overblown. Justice Kennedy’s concurring opinion left the door open to contest eminent domain cases in which private-to-private transfers of property through eminent domain are "suspicious" or "prone to abuse" or the "purported benefits are so trivial or implausible" that the courts "should presume an impermissible private purpose." Writing for the Court, Justice Stevens stated "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." In other words, states may limit eminent domain through state constitutional law or state -- a sound federalist position that given the reality of Kelo states ought to pursue and pursue vigorously.

However, despite the fact that reaction was overblown and there are legislative remedies to curtail abuse of eminent domain, I disagree with John’s conclusion that “it is far from clear that the case was wrongly decided.” Only a lawyer would fail to see with clarity the error in the Court’s decision.

Although Kelo follows existing case law, that case law is based on a constitutionally dubious presumption that economic liberty issues are different than more “fundamental” liberties. The Court treats economic liberty cases under a rational basis test rather than under strict constitutional scrutiny. In other words, if a municipality can make a rational justification for a project -- the requirement of an integrated plan in the Kelo case -- then the Court will not second guess the municipality’s judgment about the benefit of the project. Constitutionality is assumed. This differs from the strict scrutiny applied in a gender bias case, for example, where a municipality would have to prove to the Court that gender differences justified a discriminatory law for say, hiring firefighters.

The problem with the Court’s position is that it turns a substantive right, private property, into a procedural right, due process. In that regard, Kelo is no different than campaign finance reform, which also makes a substantive right, free speech, into a procedural right, a rigid process for making campaign contributions that applies equally to everyone. Substantive rights should not be replaced by process. That's the fundamental and very clear problem with the Kelo decision.

Hopefully, John will have some third thoughts on the case.

(Funny hat tip to Chad "the Elder", who reads both Hinderaker and Ivins correctly.)

UPDATE: For a good article on the need to keep pressure on the Courts as well as the legislature, see this commentary by Lee McGrath of the Institute for Justice.