Pass the Spittoon, SCOTUS Edition

I cannot believe the majority's opinion in Kelo v. New London. As Todd Zywicki put it, we now have government by the Honor System. The Fifth Amendment enables takings of private property only for public use and, even then, only with just compensation. "Public use" has to have a meaning other than "whatever the legislature thinks would be appropriate." Now it doesn't. Pity.

Here's the ironic part. The 5-4 majority was the liberals on the court (the 5 who aren't O'Connor, Rehnquist, Scalia, and Thomas). I would think that most liberals--vanguards of the poor and disenfranchised--will be the ones to rue the day that the Court allowed unseemly alliances between corporate interests and their political handmaidens to evict the poor and disenfranchised in the name of something as vague and manipulable as "economic development."

Julian Sanchez and Don Boudreaux also make this point very succinctly. Eugene Volokh takes us through an interesting thought experiment:

Now there are certainly other arguments in the dissents' favor. Perhaps Justice Thomas is right that the original meaning of the "public use" requirement was to mandate that the property be owned by the public or by a common carrier, and that we should therefore insist on this meaning. Or perhaps Justice O'Connor is right that without some such requirement, the government would have too much power to merely take property from one person to another, with no real public benefit. Or one could argue that as between (1) no takings, (2) takings of property to be owned and operated by the government, and (3) takings of property to be owned and operated by private parties, but for a public benefit, #3 is indeed more efficient than #2, but #1 is most efficient of all — and that we therefore should allow only #2, precisely because its inefficiencies will provide a natural deterrence to takings, and push the government more often into the best position, #1. I'm certainly sympathetic to finding some constitutional limit to government power here.

I would gladly allow the improvements of moving from #2 to #3, but the standard for what constitutes a "public use" ought to be that it is both a public good and that there is no other feasible way to obtain that public good. So it cannot just be for a railroad or a hospital--it has to be for a railroad or hospital that cannot be built any other way. If we had a better standard, then we could pursue the efficiency advantages of private implementation. But certainly not until then.

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