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The Stevens Manifesto

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What Matt correctly describes as an overheated response to a Supreme Court decision that upheld hundreds of years of precedents has certainly reached its apogee with Kieran Healy‘s post. To be honest, even accounting for the rhetorical hyperbole I find this entire line of reasoning bizarre. If the existence of meaningful private property depends on giving a new substantive meaning to the phrase “public purpose” in the Fifth Amendment, then the United States has never had significant property rights. Perhaps the most salient fact about Kelo is that there’s nothing new here. The takings clause has always been interpreted to require that states compensate property owners, not to determine what a valid “public purpose” is. Perhaps this interpretation is wrong, but if it made the effective continuance of private property impossible I think we would have noticed by now. (I think it’s worth reiterating, as well, that even if Kelo had come out the other way, it would have stopped a small percentage of eminent domain takings.)

But there’s an additional problem with the claim that property rights will be seriously threatened if the courts aren’t charged with determining which development plans constitute a legitimate “public purpose” and which do not. The Canadian Charter of Rights and Freedoms doesn’t have a takings clause at all. Great Britain doesn’t have judicial review at all. Are these countries, then, closer to communist societies than liberal democracies? Of course not. This decision may be right or it may be wrong, but the existence of property rights was hardly at stake. I’m puzzled by the rampant conflation of “rights” and “particular exercises of judicial review” by people who should know better.

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