The Kelo counterattack

It’s easy to get discouraged watching the public indifference as government grows larger and larger, and more and more intrusive.  Our ancestors took on the most powerful empire in the world to defend intrusions on their liberties that would be deemed petty by modern standards.  As I’ve said before, they would be ashamed of us.

But sometimes something happens which offers hope, and shows that some folks are still paying attention. 

In 2000 the city of New London, Connecticut used the power of eminent domain to force homeowners and businesses to sell some 90 acres of private property to a private real estate developer.  Some homeowners resisted, and the fight wound its way to the United States Supreme Court.  In 2005, by a 5-4 vote, the Court ruled that the city’s action did not violate the takings clause, thus endorsing public seizure of private property, to be transferred to another private entity, which could then develop the property for its own profit.

The Kelo decision was received with outrage by nearly all segments of society.  It was one of those rare ocassions when the entire nation seemed to rally to the cause of liberty.  And the resulting counterattack was a thing of beauty.

Within four years of the Kelo decision 43 states had passed legislation, or amended their constitutions, to prohibit or restrict such takings.  At least five state supreme courts acted to impede further takings.  The U.S. Congress even passed legislation (the Bond Amendment) designed to prevent the use of federal funds in such takings.  And in 2006, President Bush signed an executive order prohibiting the federal government from engaging in Kelo-type takings.

In light of the broad-based response at every level of government, it is likely that Justice Stevens and his four colleagues did liberty a favor when they issued the Kelo opinion.  And even though her side did not prevail that day, Justice O’Connor’s warning was heeded.  Authoring the dissent she wrote, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e. given to an owner who might use it in a way the legislature deems more beneficial to the public–in the process. (The effect of that reasoning) is to wash out any distinction between private and public use of property–and thereby effectively to delete the words ‘for public use’ from the taking clause of the Fifth Amendment.”  She was right, and the country reacted.

We cannot, and should not, rely on the U.S. Supreme Court to protect our liberties.  (In fact, we’d be safer if the Supreme Court had no authority in cases like Kelo, but I’ll save that subject for another day.)  Instead, we should be vigilant, and when liberty is threatened, defend it.  The Kelo counterattack demonstrates one way that the insatiable appetite of the state can be controlled.

Love Wins