The American Prospect on the Kelo Debacle: "It's almost a textbook case of federalism at its best"


Garrett Epps, the legal affairs editor for the left-wing American Prospect, has a new column taking aim at the various House Republicans who voted last month in favor of H.R. 1443. That bill, also known as the Property Rights Protection Act, was written in order to prevent the sort of eminent domain abuse that the Supreme Court allowed to stand in its notorious 2005 ruling in Kelo v. City of New London, which upheld the use of eminent domain to transfer property from one private owner to another for the sake of economic development.

As Epps sees it, these Republicans are total hypocrites. The GOP typically favors states' rights, he notes, yet in this case Republicans are upset that the Supreme Court allowed the state of Connecticut to call its own shots.

There's certainly some truth to Epps' complaint. Newt Gingrich, for example, recently used Kelo as an example of the sort of judicial tyranny that his presidency would attack, though of course Gingrich completely ignored the fact that in Kelo the Supreme Court did exactly what he claims it should do: Defer to the wisdom of local majorities. So yes, Republicans can be total hypocrites on this and plenty of other issues.

But Epps then proceeds to forfeit the high ground entirely with this whopper:

since the [Kelo] decision, at least 34 states have passed legislation to restrict or ban taking private property by eminent domain for economic development projects.  In all, more than 40 states now have such laws. It's almost a textbook case of federalism at its best, in fact: states grappling with issues of property, economics, and liberty, and contriving local solutions that suit local conditions.

Kelo is only a textbook case of federalism if you ignore the 14th Amendment to the Constitution, which commands: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." As Epps knows, that language means that state and local governments are also bound by the Bill of Rights, which includes the Fifth Amendment's instruction, "nor shall private property be taken for public use without just compensation."

I doubt Epps would be cheering if various state governments started to "experiment" with censorship laws, the establishment of religions, or other things that violate the First Amendment. Eminent domain abuse by the states is no different.