Misunderstanding Kelo

This brief post at the “centrist” blog Donklephant makes two glaring errors with respect to the recent Kelo decision which seem to be quite common:

• Gardner’s claim that Kelo “broadened” eminent domain rules is simply false. It was, of course, the dissenters who wanted to change the traditional understanding of the “public use” clause. As Stevens argued, “[w]ithout exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.” The Court has generally seen the requirement of “just compensation” as the key restriction on state powers, not the “public use” clause. The idea that economic development is a valid public purpose was invented by the Supreme Court in 2005 is simply absurd. For better and worse, this meaning is very well-entrenched within American constitutional law. This does not, of course, make the decision necessarily correct; long-standing interpretations have sometimes been overturned. But the court in Kelo did not “broaden eminent domain rules,” it applied the existing rule and refused to create a new one. (And if, as Gardner seems to, you have a problem with the very idea that governments can “condemn private land for the ‘public good,'” your quarrel is not with the Supreme Court, but with the framers of the Fifth Amendment.)

• It also betrays a fundamental misunderstanding to claim that proposed legislative action restricting the use of eminent domain constitutes “fighting” the decision. To say that a state action is constitutional, of course, is not to say that it is good public policy. The Supreme Court did not require any government entity to use its eminent domain powers for economic development. It does not contradict the decision in any way for any level of government to restrict eminent domain powers. It did not prevent the citizens of New London from changing its elected officials if it didn’t like the outcome. It simply declined to read some sort of substantive content into the “public use” provision of the takings clause–and quite properly so, in my view. (The even more idiotic version of this argument holds that Kelo was “judicial activism.” If a decision squarely within an extensive body of precedent that defers to the other branches of government is “judicial activism”, then the term is simply a meaningless tautology.) At any rate, as Kevin Drum notes if you think New London’s decision to condemn private property for a coast guard museum was unwise, changing the laws is the appropriate response, not vastly expanding the power of the federal courts to supervise economic policy.