Understanding Kelo

The lonely libertarian has been a bit surprised as to the lack of understanding about the Kelo decision. To recap just what it means: Higher property taxes is justification enough for the government to seize the land of one homeowner and give it to another private individual, provided that such a taking occurs as part of an economic development plan. The courts will treat any supposed economic development plan with deference. Remember, the real issue the court was deciding was only that of “public use.”

The problem with this decision is that it essentially eliminates all judicial safeguards in cases of government takings of private property, and leaves such matters to the democratic system. This is much like leaving determinations about speech in the hands of a democratic majority, and really co-opts the rational behind having a bill of rights to begin with. Just as we need the first amendment to protect unpopular speech, we need the fifth amendment to protect powerless of unpopular landowners.

It’s not going to be corporations or the wealthy who lose their property. It’s going to be the poor, and the lower middle class. The poor farmer whose family has lived in that house for 200 years? A Walmart could definitely provide more tax revenue. And who do you think has more political clout?

In a controversial Supreme Court decision, the question of “judicial activism” always arises. One could argue that O’Conner and the dissenters in Kelo were the ones looking to be activist. However, judicial activism is not a problem on its own merits, it is a problem when judges make decisions that clearly interfere with the political process. Deciding on “public use,” a term explicitly found in the Constitution, is no more activist than deciding cases on “speech.”