In Kelo v. City of New London the Supreme Court today upheld a local government’s authority to take ordinary, non-blighted homes for redevelopment by private interests so long as it has paid just compensation. (The Constitution decrees that “private property shall [not] be taken for public use, without just compensation.”) The 5-4 decision, though disappointing, came as no surprise. Twenty-five years ago the court allowed Hawaii to take, if it paid compensation for, the leasehold interests of a few landowners and transfer them to private tenants in order to break the landowners’ oligopolistic hold. If such a redistributionist program satisfied the Constitution’s “public use” requirement, then it is hard to see why New London’s purpose—to increase employment, fatten tax rolls, and remove some blighted properties in order to create a redevelopment zone—would not also count as a public use.
The court might have reined in local governments from bulldozing private property rights by at least demanding some heightened legal inquiry into the government’s claim that its action will bring about a public benefit. But Justice John Paul Stevens, writing the majority opinion for the court, would have none of that: While intoning the formula that a pure grab to favor cronies of the state would not be tolerated, he refused to consider even the mildest boost to judicial scrutiny. Justice Anthony Kennedy seemed to see this point. In a concurrence, he expressed hope that the court would not be powerless to curb abuses of government power—but then unaccountably he joined Stevens’ opinion holding that the state can do no wrong.
Over the last 15 years or so—in decisions like Lucas v. South Carolina Coastal Council, Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Pallazolo v. Rhode Island—the court has shown some backbone in protecting property rights from the insatiable appetite of the regulatory state. Unlike some other rights that get the fullest measure of the court’s protection, these property rights are explicitly mentioned in the Constitution’s Fifth Amendment. Kelo, however, is the latest example of the court’s faltering will in this and several other areas. In 2003, the court held in Brown v. Legal Foundation of Washington, by a vote of 5-4, that state governments may take money from ordinary clients to fund legal services for the poor when the government lacks the will to fund this charity the old-fashioned way: through taxes levied on all. The majority reached this conclusion in the teeth of its decision only a few years earlier, in Phillips v. Washington Legal Foundation, that this method of funding legal services was a taking of client property that had to be compensated. This term, the court allowed the federal government to force unwilling beef producers to contribute to advertisements that they believed devalued their product, though a few years before the court had reached the exactly opposite conclusion in preventing speech from being foisted on unwilling mushroom growers.
In general, the claims of the regulatory state have been winning more and more in recent years. The court’s 2003 decision upholding the McCain-Feingold campaign-finance act stepped back from the ringing statement in Buckley v. Valeo that “the concept that government may restrict the speech of some … in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Most disappointing of all, after years of reining in the regulators and racial social engineers, in Hunt v. Cromartie the court gave up on its effort to restrict racial gerrymanders and in Grutter v. Bollinger, the case about racial preferences in admissions at Michigan Law School, the court ignored its own precedents to bless a transparent evasion of the rule against racial quotas.
The Rehnquist Court has done its greatest work in reversing the excesses of the years of Justice William Brennan’s ascendancy. But in its recent decisions in the areas of federalism, religion, affirmative action, the death penalty, and now property rights, the court seems to be losing its grip.