Skip to comments.Leggo My Kelo-The attorney who argued the case responds
Posted on 07/20/2005 4:09:33 PM PDT by FortRumbull
Leggo My Kelo
In his piece Property Rights & Wrongs, Jonathan Adler defended the U.S. Supreme Courts 5-4 Kelo decision, which held that cities may use eminent domain to take private houses and give them to private corporations for economic development. Whereas the Kelo majority basically acknowledged that its approach was at odds with the original understanding of the Constitution, Adler mysteriously claimed that the originalist case for a robust, judicially enforceable public use limitation is fairly weak.
We should start, as Adler does not, with the Constitution itself. The Fifth Amendment reads nor shall private property be taken for public use, without just compensation. This implicitly forbids the government from taking your property for merely private uses; if it did not, the public use clause would be meaningless and empty, contradicting chief justice John Marshalls warning over 200 years ago that no clause of the Constitution is intended to be meaningless.
Although Adler expresses doubt that the word public means anything at all, he then admits that naked property transfers from A to B are not permissible under the Fifth Amendment. But if we followed his argument and excised public use from the takings clause, why would that be so? Ignoring the constitutional text or giving plenary power to legislatures to be the judge of their own constitutional powers would leave many plots of land vulnerable to exactly the abuse that Adler describes.
Adler then attempts to muddy the waters by suggesting that we cannot read public use to mean what it says because that would endanger the governments ability to take land for military bases and prisons. Nonsense. As Justice Thomass thorough dissent points out, if the government owns and uses the land, there is no doubt that it is a proper public use. Government uses are necessarily public ones: There is no such thing as a private government. The constitutional problem arises when a government takes land not to use for itself but to hand it off to a private party without ensuring that the public retains the right to use it.
In other words, if the government uses eminent domain to build a restricted-access government postal facility, the use is public because the post office belongs to us, the public. But if the government takes my home because FedEx wants to turn it in to a warehouse, it violates the Constitution and the basic idea of private property.
Adler then briefly alludes to the use of eminent domain by states to build private roads and to flood lands for privately owned mills. Strictly speaking, many of these examples have little to do with the Fifth Amendment, since that amendment did not apply to state governments until the second half of the 19th century. And even so, Justice Thomass dissent discusses evidence that early grist mills were required by law to be open to the public, as were many private roads.
To be sure, there have been some unconstitutional government abuses of the eminent domain power throughout history, and courts have not always been wise enough or brave enough to uphold the Constitution when it became unpopular. The same is true today. But it would be a mistake to let defiance of the Constitution become legitimate merely by repetition, or to let it obscure the original meaning of the public use clause.
Indeed, it may be telling that Justice Stevenss opinion in Kelo did not even try to meet the historical evidence marshaled by Justice Thomas (nor, for that matter, does Adler). Stevens instead relied upon a string of more modern Supreme Court precedents that had replaced the word use with purpose, and argued that it would be impractical to continue to enforce the original meaning of the Constitution given the diverse and always evolving needs of society.
Finally, Adler suggests that enforcing the Constitutions public use clause might make it harder for governments to sell off the public lands, and would turn the takings clause into a ratchet. But the constitutional requirement of takings only for public use does not impose limits on the governments ability to sell land once it has been put to public use; the public use clause prevents taking property where there is no public use. Kelo was not about whether the city could sell publicly owned land; it was about whether it could transfer land from one private owner to another because an office building would pay more taxes than Susette Kelo.
It has become fashionable among some scholars to ignore provisions of the Constitution because they are inconvenient, or hard to understand, or unpopular. Adler is right that eminent domain abuse is offensive, but he is wrong to think that the Constitution permits these offensive abuses. As the Framers of the Fifth Amendment, as well as four justices of the Supreme Court and the outraged public realized, the Constitution must be taken to mean what it says, not tossed off because city bureaucrats and academics find it a nuisance.
Scott Bullock Senior Attorney Institue for Justice Washington, D.C.
Does Adler believe that the words "alone", "sex", and "is" mean anything at all?
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