Strengthening Constitutional Self-Government

No Left Turns

silver linings after Kelo

Also, as awful as I think the Kelo decision is, I think there are some good things for interested readers to focus on.

First, I think the case will galvanize public-use litigation even though New London won. Kelo was expected to lose 7-2 or 8-1, but the decision was 5-4, and with really strong dissents by Justices Thomas and O’Connor, and a concurring opinion by Kennedy that gives litigants some useful pointers how to win the next case. I think most land-use lawyers and most state courts will see the closeness of the case as a sign to reconsider public-use law seriously.

Second, in his dissent, Justice Thomas made it respectable to go back to the original meaning of "public use" -- government property like courthouses and roads, or property owned by utilities with a duty of access to the public. Thomas also said that the Founders regarded property as a "fundamental, natural right."

Third, and most important, Kelo made it crystal-clear that it’s a risky business to expect federal-court judges to defend property rights. It’s not enough to armchair-criticize a court opinion; citizens who want to protect their rights need to organize locally. Ironically, by losing, Kelo may end up doing property rights more of a favor -- by galvanizing ordinary citizens to support efforts to redraft state state "blight," "economic development," and "TIF" laws. These are the laws that give local governments to condemn land and assign it to businesses or local developers. These laws usually are quite open-ended, and they usually signal to state courts that the courts ought to defer to local findings that condemnations are necessary. Practically, I don’t think public-use law will ever be able to fix the abuse; what is needed is state legislation that (a) sets clear and agreed-on criteria saying when it is appropriate to use eminent domain, (b) requires courts to review local determinations independently, and (c) requires local governments to consider what impact proposed condemnations will have on property rights.

Anyone who’s interested should consult the Claremont Institute’s Center for Local Government, which is active in these things.

Discussions - 6 Comments

Kelo made it crystal-clear that it’s a risky business to expect federal-court judges to defend property rights. It’s not enough to armchair-criticize a court opinion; citizens who want to protect their rights need to organize locally.

Amen to that, sir! Let’s have constitutional amendments in every state mandating an absolute ban on corporatist land grabs. Any lawyers want to suggest the language? I’ll gladly stand out in the sun getting signatures on the petition


.... in the Wal-Mart Parking lot

This week the Supreme Court has ruled that you nhave property rights if you are rich and politically connected.

1. Kelo, Pfizer and developers can force homeowners to sell their homes
2. Brand X, Cable companies get control over their cables and they can control who can use the cables to their hearts content. Note that the same cable companies are lobbying hard to control the development of wireless networks.
3. MGM, media companies can force companies that offer genuine utility in theoir producst to make sure no one is using it to steal property. Note that over the past few years the length of copyright protection has been extended. (yes by legislatures notr the courts).

Actually I have some sympathy the Court’s rulings on 2 and 3 but isn’t it interesting that in all cases the rich side of the equation won the decision.

"HANNITY: Now, what is this book that you have, Judge?

MOORE: This is the volume two of the commentaries on the laws of England. And one thousand of these books was printed in Philadelphia in 1771. This is where they got the definitions of life, liberty and property.

Property was related to God giving man dominion over the Earth. So it was related to God. When the state takes the place of God, then the state starts taking your property for economic purposes."


This is from the transcript of "Hannity & Colmes" last night during a conversation with former Justice Roy Moore. Keep preachin’, brother!

Oh, Jennifer, nice segue between the Kelo and 10 Commandments decisions! A twofer! I like it.

I just want to thank Professor Claeys
for his post. I also am sending him an "Open letter"!!

Hello Professor Claeys,

I’m a Disabled Vet who is totally angry at the recent Supreme Court decision regarding the Fifth Amendment.

I read your comment about seeking redress through the courts in today Fox online news. I am thanking you for
simply holding out HOPE.

I am sick and tired of hearing that the FIVE KINGS in the Supreme Court can dictate "Law" and thus there is nothing
we can do about it. Apathy is THEIR friend, not ours!

I have already written over 120 letters to Congress since the decision Friday, and I’ll keep writing and calling until my fingers are like my legs: stumps! I was shocked to receive a PERSONAL letter, not a form letter, from Hilary Clinton written in real ink (not copied on a copier or printed on a computer like most I received!) and signed by her. Although it was only one paragraph, she acknowledged the Supreme Court MADE law that day instead of interpreting law as is their Constitutional limit.

She stated she will support ANY Constitutional Amendment to put
the Fifth Amendment back in the perspective intended when it was
first passed. Oh yeah, I’m a REPUBLICAN and made that known in my initial letter! :+)

Anyway, please continue to educate your students and ALL U.S. citizens that we CAN change things.

Thanks & God Bless!

I forgot to say that I always send my letters Priority Mail, and I’ve been told that THEY actually make it to the Senator’s/Congressmen’s office. I guess they figure that nobody would send a ’routine letter’ in a $3.85 envelope, but yeah, it’s really that important!!! (Thanks A1 Steak Sauce for THAT slogan!)

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