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Unhappy Anniversary: Kelo's 'Public Purpose'

     “Progressive” thinkers everywhere will soon celebrate the first anniversary of Kelo v. City of New London, the Supreme Court case that finally made the jurisprudence of property rights “progressive.”


     In Kelo, the Court ruled that the Constitution permits government to seize property from one private citizen and give it to another. The only Constitutional restraints on this power, said the Court, are government’s obligation to pay “just compensation” to the losing property owner and its obligation to believe really and truly, cross-its-heart-and-hope-to-die, that the forced transfer of property benefits the public.


     The “progressive” see the importance of this ruling in its clever reading of the Fifth Amendment’s takings clause, which says: “nor shall private property be taken for public use, without just compensation.” Courts have long read the “public use” phrase to prevent government from taking private property except for a “public use” (such as building a street or a sewer line).


     But in Kelo the Court rejected this interpretation as quaint, explaining that “public use” really means “public purpose.” And the Court refuses to question the city fathers who assert that demolishing middle-class homes and replacing them with spiffy office complexes is a worthy public purpose.


     Of course, Kelo disturbed many non-“progressives.” They point out that that “public use” does not mean “public purpose” – and that “public purpose” is too vague a standard. They note also that deferring to legislatures’ claims that property seizures serve a “public purpose” mocks the Constitution’s complementary goals of restraining government power and protecting citizens’ liberty and property.


     If the Constitution required courts to defer to legislatures’ property seizures, why did the framers bother to put the “public use” restriction into the Constitution? Any legislature that forcibly transfers property from one private owner to another can too easily fabricate a story of some social benefit that might, just might, emerge from such transfers.


     “Progressives” reject this founding-era skepticism of government. To them, early Americans’ embrace of self-responsibility, private markets and freedom revealed an unfortunate blindness to the fact that government is our friend and servant.


     Indeed, today’s “progressive” attitude toward government goes beyond believing it to be our boon companion. Truly “progressive” thinkers regard government as the font of all our blessings, the very source of society.


     As declared recently by University of Chicago law professor Cass Sunstein, “Private property depends on property rights, which do not exist without government and law.” He is inspired by none other than FDR who – to justify his administration’s unprecedented control over the economy – opined that “the exercise of … property rights might so interfere with the rights of the individual that the government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism but to protect it.”


     This “progressive” thesis is a wholesale and dangerous rejection of the Lockean principles cherished by America’s founders. John Locke understood that each of us possesses rights naturally – among which are life, liberty, and property – and that government’s sole justification is to protect these rights. Governments no more create our rights by protecting them than physicians create our bodies by medicating them.


     Yet the “progressive” mind is so eager to validate state control of our lives that it leaps mindlessly from the proposition that government can play a role in protecting our rights to the ludicrous notion that government gives us our rights. And after this leap, it’s a short step to the conclusion that rights are conditional upon the whim of the state – that rights aren’t really rights at all, but privileges we enjoy only by government’s grace.


     Of course, this idea isn’t actually progressive. It’s regressive in the extreme. It reflects Plato’s insistence that ordinary people, many of whom are “natural slaves,” are best ruled by “philosopher kings” possessing near-dictatorial powers. Not to worry, though: Plato assured us these kings would be wise, selfless and good.


     More than 2,000 years later, John Locke, James Madison and other modern thinkers exposed this notion as wrongheaded and dangerous. Their works laid the foundation for our understanding that a people whose individual freedoms are sturdily guarded by genuine, inviolable rights – including rights to property – are the most productive, prosperous and truly progressive. The Supreme Court regrettably rejected this understanding.


     But the Kelo cloud has a silver lining: it has sparked public outrage. In response to this ruling, the House of Representatives as well as 47 state legislatures are considering legislation aimed at curbing abuse of eminent domain. The problem remains, of course, that when these same legislatures decide they need to seize your property for a “public purpose,” the Supreme Court says “right on!”



Donald J. Boudreaux, an adviser to the Media Research Center’s Business & Media Institute, is chairman of the Department of Economics at George Mason University in Fairfax, Va. He can be reached at dboudrea@gmu.edu.