The Breakfast Table

But Didn’t Justice Kennedy Save the Day?

Dear Dahlia and Charles,

“Supreme Court Rules Cities May Seize Homes”!!! The image conveyed by the first news of the Supreme Court’s 5-4 ruling in Kelo v. City of New London was stark: Some Internet alarmists seemed to imagine the twumpt, twumpt, twumpt of a large black helicopter hovering at dawn over a Connecticut house as a masked commando SWAT team brandishing AK-47s ousts mom (cradling baby as she stumbles from the house), while teenage boy pleads with dad to stand and fight against the government forces seizing the beloved family home. Within days it will be converted to its new “public use” as a radical feminist re-education center. All this with the shocking approval of the Supreme Court and the apostasy of Anthony Kennedy providing the decisive fifth vote.

Fortunately, here at Slate we have the benefit of a far more measured critique of Kelo from the Honorable Charles Fried. I am surprised, however, that he and others have failed fully to acknowledge the potentially significant conservative victory embedded in Kennedy’s crucial concurrence.

While many government “takings,” particularly those that destroy working-class neighborhoods for a new Wal-Mart, strike me as misguided as a matter of policy, the taking of property is a practice with a long constitutional pedigree. The government has been “seizing” houses for well over two centuries. Some of yesterday’s commentary seemed to assume that the court was ignoring an obvious violation of the constitutional ban against taking property. But there is no such ban. The Takings Clause of the Fifth Amendment (“[N]or shall private property be taken for public use, without just compensation”) assumes and affirms government power to take private property—as long as the government pays fair market value to the owners, as it will to the property owners in Kelo.

In another takings case decided last week, San Remo Hotel v. San Francisco, some justices seemed to miss the same simple point—that the Takings Clause is simply not violated when the state takes private property for a public purpose and pays the compensation that is due. Charles and I had this debate in 2003 before the Supreme Court, when we argued against each other in Brown v. Legal Foundation of Washington. At stake in that case was whether taking the interest from lawyers’ trust accounts to fund legal services for the poor violated the Takings Clause—where there was no actual measurable loss to the clients, and thus no denial of due compensation. The principle that the violation is not the taking but the denial of compensation rightly prevailed in that case, and the legal-services funding programs were sustained.

Other than paying compensation for the property, the only other requirement of the Takings Clause is that the property seized be put to a “public use.” That’s the precise issue in Kelo. I would have assumed that a “public use” was any use that benefited the public. The Kelo plaintiffs, however, sought a rigid rule that only uses by government agencies—and not, for example, uses by private development organizations—could be “public uses.” When I first heard of the case, I assumed that conservative organizations would actually oppose a gloss on the Constitution that would preclude local governments from using private entrepreneurs to realize the benefits of private property taken by eminent domain. Instead, the conservative groups sought a government-use-only rule. The constitutional argument for this proposition was, in the end, unpersuasive. I just don’t see how a court giving any deference to state and local governments can conclude that the phrase “public use” is clearly narrower than the concept of “public purpose” or “public benefit”

There are some government economic regulations that ought to be struck down—many of the occupational licensing laws, for example—but stretching the Takings Clause to reach them seems misguided. Those who would like to see greater judicial protection of economic liberties (and to some degree, I am among them) should instead use the Due Process Clauses of the Fifth and 14th Amendments to demand that economic regulation generally satisfy a moderate level of judicial scrutiny. The aim would be to invalidate at least the worst cases of government transfers of property from one set of private interests to another without advancing a public purpose. Justice Kennedy’s essential concurring opinion contains the seeds of such an approach. Although it has less bite than the dissenters wanted, it potentially has far broader reach than the constitutional text of the Takings Clause. Kennedy’s approach has the virtue of flushing out what Professor Cass Sunstein, of the University of Chicago, has called “naked preferences” for parties who have exerted improper influence on governmental officials. “A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit,” Kennedy wrote yesterday. There is no logical reason why his test should be limited to takings when it applies equally well to more extensive categories of economic regulation. Conservatives need to better recognize who their true friends are.

Sometime Monday morning, we will find out what the justices conclude about government displays of the Ten Commandments, about teenagers who violate the commandment “thou shall not steal thy record company’s hot new song,” and about a couple of key procedural issues that arise when states act under the footnote to “thou shall not kill” that excepts capital punishment. I look forward to your instant analysis.