The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Kelo and the all-or-nothing approach to constitutional property rights
Prominent legal scholar Jedediah Purdy recently published a review of my book The Grasping Hand: Kelo v. City of New London v. the Limits of Eminent Domain, in which he expressed great skepticism about the desirability of strengthening judicial protection for property rights. Evan Bernick of the Institute for Justice (the public interest group that represented the property owners in the Kelo case) has, in turn, posted a critique of Purdy's article. I agree with many of Bernick's points, and would like to add a few of my own.
As Bernick recognizes, the interesting aspect of Purdy's article is not so much what it says about my book but the way it reflects a particular type of left-liberal attitude towards judicial enforcement of property rights and economic liberties: the "all-or-nothing" approach, which holds that either courts must ignore such rights almost completely, or they must commit themselves to a sweeping version of laissez-faire.
The main focus of The Grasping Hand is my constitutional critique of the Kelo decision, and the broad definition of "public use" it adopted in order to uphold the taking of private property for transfer to other private interests for purposes of promoting "economic development." Although the Fifth Amendment allows government to condemn property only for "public use," the Court, in Kelo and several previous cases, ruled that virtually any potential public benefit qualifies as a public use, even if the government could not prove that the supposed benefit was actually likely to materialize.
Purdy gives little consideration to the various originalist and living constitution arguments I offer in defense of a narrow definition of "public use." He does not even clearly indicate whether he thinks my conclusion is correct or not (he states merely that it is "a plausible idea"). Instead, he focuses on warning that my critique of Kelo and eminent domain is dangerous because it might lead to stronger judicial protection for property rights more generally, which in turn "would end up making everyone more vulnerable and unequal." He even raises the spectre of a return to the Lochner era, even though it was actually the Kelo majority that relied on dubious and doctrinally inapplicable Lochner-era precedents to justify its decision (an error that was later admitted by Justice John Paul Stevens the author of the majority opinion).
In the few places where he does actually address Kelo and eminent domain, Purdy pays little attention to detail, and as a result makes some errors. For example, he chides me for supposedly claiming that the "coordination problems" that eminent domain is supposed to solve can instead be overcome by "government agents [who] could secretly buy up property without announcing their development plans." In reality, as explained in the book, it is private developers, not "government agents" who routinely use secret assembly to prevent holdout problems. Government, by contrast, usually cannot use secret assembly effectively, and probably should not do so even if it could. This is one of the reasons for distinguishing between takings for private projects (like the ones in Kelo) and those for publicly owned infrastructure. Purdy's focus on what he sees as the big picture may have caused him to lose sight of such distinctions.
On Purdy's view, we may have to swallow cases like Kelo because, otherwise we will return to the supposed bad old days of total laissez-faire where the rich could do whatever they want to the poor. This is a false dichotomy, but one that many on the left seem to endorse (though sometimes only implicitly). As a matter of legal doctrine, one can easily endorse a narrow definition of "public use" and thereby support overruling Kelo and other similar decisions, without making any commitments about the meaning of other parts of the Constitution that relate to property rights or economic liberties. "Public use" is a phrase with specific meaning, history, and implications for government policy that are not necessarily shared by other provisions in the Constitution. The all-or-nothing approach to constitutional property rights and economic liberties is somewhat like saying that judges should not adopt tighter enforcement of Fourth Amendment constraints on searches and seizures because doing so would inevitably lead them to hamstring every other aspect of law enforcement.
Reversing Kelo and adopting a narrow definition of "public use" is incompatible with one approach to property rights: the view that they should be given little or no judicial protection, regardless of the constitutional provision at issue or the circumstances of the particular case. But such generalized second-class status for property rights cannot be justified on any defensible version of either originalism or living-constitution theory. As Bernick emphasizes, Purdy is wrong to suppose that the Founders largely left property rights to the mercies of the political process. In addition to the Takings Clause at issue in Kelo, the Contracts Clause (a major focus of constitutional litigation in the early Republic) and the Due Process Clause of the Fifth Amendment were also included in large part to protect property rights against legislative abuses. Across-the-board judicial abdication on property rights is also inconsistent with the way the courts treat other constitutional rights. As Justice Clarence Thomas put it in his Kelo dissent, the Supreme Court does not defer to the legislature "when the issue is only whether the government may search a home" under the Fourth Amendment. But deference becomes the order of the day when the issue is "whether the government may take the infinitely more intrusive step of tearing down…homes… Though citizens are safe from the government in their homes, the homes themselves are not."
Purdy rightly emphasizes that we should not make legal doctrine or public policy based merely on a few "sympathetic" cases, including that of the property owners victimized in Kelo. But, as I document in detail in the book, the Kelo case was not an unusual aberration. The people displaced there were just a few of the many hundreds of thousands forced out by blight and economic development takings for the benefit of private interests since the Supreme Court and various state courts adopted an ultra-broad definition of public use in the mid-twentieth century. Most of these people were poor, politically weak, and racial or ethnic minorities, and most of the takings that displaced them destroyed more economic value than they created. This sad state of affairs should bother people on the left, including those who favor approaches to constitutional interpretation that emphasize the need for judicial protection of "discrete and insular minorities" who often can't fend for themselves in the political process.
Other infringements on property rights and economic liberties that inflict massive harm on the poor and politically weak are also common. For example, experts across the political spectrum now recognize that restrictive zoning inflicts great harm on poor and lower-middle class people seeking housing and job opportunities.
Outside the legal academy, there is increasing recognition on the left that the all-or-nothing approach to judicial enforcement of property rights is unwise. Among the many opponents of the Kelo decision were such left of center people and groups as Ralph Nader and the NAACP. They have not suddenly become libertarians; they simply recognize that eminent domain and the Public Use Clause raise issues different from those that may exist in some other cases.
Libertarians and liberals are unlikely to reach a consensus on constitutional property rights anytime soon. I certainly don't hide the fact that I favor broader protection for property rights than most of the left-wing critics of Kelo. We should, however, be able to agree that the all-or-nothing approach to property rights makes little sense, just as it makes little sense to adopt that approach to other types of constitutional rights. We should recognize the potential for cross-ideological cooperation on some "economic" issues, even as we continue to disagree on many others.
UPDATE: I have made a few minor revisions to this post.