The worst decision of Justice Stevens

Lexington
Lexington’s notebook
The Economist
4/14/2010

IN A long and distinguished career, Justice Stevens wrote many decisions that I applaud. I liked his sceptical attitude towards prosecutors, and though I don’t agree with him that the death penalty is unconstitutional, I would certainly agree with him that it should be abolished.

But his opinion in Kelo v New London (2005) was simply terrible. The case was about a private developer in New London, Connecticut, who wanted to raze some waterfront homes to build an office block and some posh apartments. The owners didn’t want to sell. The city decided to force them to, calculating that the new development would create jobs and yield more taxes.

The city decided to use the power of “eminent domain”. Under the 5th amendment, the government may seize private property only in exceptional circumstances. The land seized must be put to “public use”, and “just compensation” must be paid. “Public use” has traditionally been taken to mean something like a public highway. Roads would obviously be much harder to build if a single homeowner could hold out forever or for excessive compensation. The government’s powers of “eminent domain” have also been used to clean up blighted slums.

In this case, however, the area was not blighted, and the land was not going to be put to a public use, so the seizure was plainly unlawful. Amazingly, Justice Stevens–and a slim majority of the court–said it was fine. Rejecting “any literal requirement that condemned property be put into use for the …public”, he said it was enough that the seizure should serve some vaguely defined “public purpose”—such as those new taxes.

This massively expanded the government’s power of eminent domain. “The spectre of condemnation hangs over all property,” fumed Justice Sandra Day O’Connor in dissent.

The article continues at The Economist

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