Supremes refuse to fix Kelo v. City of New London

[MarkD]

I've never been able to think of any reason to disapprove of the Kelo decision. I haven't read that opinion; I have read a statement by a critic of Kelo who said that the decision was contradictory to at least one precedent. If that's true, then I'll change my mind and acknowledge that it is wrong for the Court to contradict a precedent but not admit that there is any contradiction.

To me, it seems pretty obvious that the only important principle of the Takings Clause is that property owners should be justly compensated when government -- the federal government -- confiscates their property. The prepositional phrase "for public use" seems like an afterthought. When Congress proposed the Fifth Amendment in 1789, it was probably thought that the only reason the federal government would ever confiscate any property was because said government was going to use it for a public purpose. But the concept that the federal government must be limited to only allowing the federal government to confiscate property is if it will put that property to a public use does not seem to be consistent with how the Takings Clause was worded.

So what the Court did in Kelo was exercise a great deal of judicial restraint and defer to a local government about that government's discretion in choosing what would be a "public use" of confiscated property. The Court did not increase its power, it allowed state and local governments, and maybe the federal government, to exercise a power that they wished. IMO, that is far, far less objectionable as compared to when the Court goes the opposite direction and renders erroneous interpretations of the Constitution that increase the Court's own power and take power aware from legislative bodies. And certainly, because the Kelo decision deferred to legislatures, we still, as American voters, have the power to restrict our own state, local, and maybe even federal government's power to confiscate property willy-nilly, and we can legislate ways to restrict eminent domain.

Several years ago, I watched a program on C-SPAN called "Debate on the Role of the Supreme Court." The stage was shared by six debaters and a debate moderator. Among the six debaters were three liberals and three conservatives. The debate moderator said the subject of the debate was going to be "whether the Supreme Court has overstepped its constitutional mandate." One of the liberals on stage was Alan Dershowitz, who said that the Court has been making three different kinds of mistakes when interpreting the U.S. Constitution: it has sometimes overstepped its constitutional mandate, it has sometimes understepped that mandate, and it has sometimes misstepped. Overstepping means that the Court invalidated a government action -- declared it to be unconstitutional -- but the Court's purported interpretation of the Constitution was a mistake, so the Court should have upheld the action instead. Understepping means that the Court upheld a certain governmental action -- declared that action to not be a violation of the Constitution -- but the Court's interpretation was, again, a mistake, and the Court should have struck it down. Misstepping means that the Court arrived at a conclusion that happened to be correct, but the Court's opinion nonetheless contains a mistaken explanation of what the Constitution means; the Court "came to a correct conclusion but for the wrong reason." If there had been a precedent, at some point before Kelo, that provided a narrower interpretation of the phrase "for public use" in the Takings Clause than what Kelo said, then I'll admit that the what the Court did in Kelo was understep it's constitutional mandate. But even if Kelo never gets overturned, remember what political options you still have, because the Court deferred to the legislatures of America.