The Kelo Conservative/Libertarian Question

I think Kelo is a perfect issue for separating conservatives and libertarians. Conservatives tend to favor relying on text and precedent, libertarians pushing for person liberty in individual and economic rights. Petitioners in Kelo seek (the way Roe and Lawrence sought) to break with text and precedent to protect a right they are convinced deserves constitutional protection.

Lord Coke, in expressing his undying love for Lochner in his post on Kelo, seems to overlook this. Lochner is made up out of the due process clause, whereas Kelo is an interpretation of text and precedent. Maybe Lord Coke is arguing that Kelo should be decided on substantive due process grounds and doesn't need the public use limitation, but that, of course, is not the issue before the court.

The full holding of Lochner (as opposed to the watered down version that survives and pops up again in punitive damages) is completely without textual support. The Takings Clause, on the other hand, has a very stable and clear precedent that the Court is being asked by the Kelos (I mean IJ) to overturn.

But Lord Coke is not alone in this position. Richard Epstein debating this week on Legal Affairs begins his discussion of Kelo and eminent domain with this:

The mischief started 50 years ago when our Supreme Court in Berman v. Parker held that the urban renewal program in Washington D.C. could rip down a perfectly serviceable department store as part of a larger slum clearance project.

Epstein suggests that part of the "Constitution in Exile" is some heightened standard for "public use" as if Berman was the first case to depart from an uninterrupted history of libertarian property rights.

This, I'm afraid, (with all the respect for Professor Epstein) is crap.

In Professor Merrill's amicus brief, which I posted about here, he tracks the history of the public use requirement. The Supreme Court in its entire history has invalidated exactly one case on public use grounds. And the court has consistently upheld takings for the economic benefit of the community. From Professor Merrill's brief:

[T]he public rationale for the takings in each of these cases was the State's determination that the property was needed in order to enhance the productivity of particular resources. The Court recognized that the takings in these cases could not be justified on public health and safety grounds, see Fallbrook Irrigation Dist., 164 U.S. at 163, or on the ground that large numbers of persons directly benefited from the takings, see Clark, supra; Stickley, supra. Instead, in each case the condemnation was justified because of its impact on "the growth and prosperity of the state," Clark, supra, 198 U.S. at 368, or "the prosperity of the community," Fallbrook Irrigation Dist., 164 U.S. at 163 - in other words, because it was needed to promote economic development. Each of these decisions therefore stands for the proposition that condemnation for the sole purpose of economic development is a legitimate public use, provided a State so determines and this judgment is a rational one in light of the circumstances of the property and the needs of the public. Petitioners cite some of these decisions in footnotes (see Pet. Br. at 22 n.18, 33 n.31). But they have not explained why they should now be overruled based on a novel theory that the power of eminent domain cannot be used to promote economic development.

There are economic arguments on both sides, but from a textual and precedential perspective, I see no reason for the court to depart from 200 years of precedent. But then, I'm a conservative and not a libertarian.