Can Eminent Domain Be as Bad as Slavery?

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Scalia suggests that Kelo v. New London is today's Dred Scott case


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I suppose it's better than a hand gesture, but Justice Scalia's latest off-the-bench, off-the-cuff pronouncement is distinctly erratic.

Speaking Tuesday at the Chicago-Kent College of Law, Scalia had some acerbic remarks about the Court's 2005 decision in Kelo v. New London.

According to The Chicago Sun-Times, here's what Scalia said:

I do not think that the Kelo opinion is long for this world. My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence. But it has made very few mistakes of political judgment, of estimating how far... it could stretch beyond the text of the constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade  was another ... And Kelo, I think, was a third.

It is a remarkable comparison -- one that frankly makes me wonder whether Scalia's entire critique of Warren and Burger Court jurisprudence is nothing but policy-preference-based hypocrisy. Dred Scott v. Sandford gave us the rule (corrected by the Thirteenth Amendment) that a person of African descent, even if born in the United States, was not and could never be a citizen of the United States -- even if Congress sought to do so under its power to establish "an uniform rule of naturalization." In his infamous opinion, Chief Justice Roger B. Taney wrote that the Framers of the Constitution, though they never actually said so, considered black people "beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." This intemperate decision outraged the country, dominated the Lincoln-Douglas debates, and measurably hastened the onset of Civil War.

Is Kelo really that bad?  (Before the commenters go batsputum below, let me note that I have elsewhere criticized Roe v. Wade for going too far.)

Kelo, for readers without a long memory for conservative outrage, held that the City of New London, Conn., could use its state-granted eminent domain power to force the owner of a private home to sell the house (at a market price) to the city. The land it stood on was to be used as part of a city-planned development that would center around a research facility to be built by Pfizer; the development would include residential, retail, and private leased office space. (The city hoped, vainly as it turned out, that the proposed development would be a jobs magnet.)  Suzette Kelo, a nurse, had resisted the sale of her "little pink house," the first she'd ever owned; when the city proved unrelenting, she sued, arguing that the use of public domain violated the Fifth Amendment. That Amendment provides (among other limits on government), "nor shall private property be taken for public use, without just compensation." Kelo contended that the proposed development, which would be used by private companies, did not qualify as "public use."

A bitterly split Court held that economic development projects like the New London plan did qualify as "public use." (Justice Scalia was among the dissenters, though he did not write his own opinion.) Both sides agreed that the government could not take one person's property for the sole purpose of giving it to someone it liked better (a practice much beloved of kings).  "[T]he City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party," Justice Stevens wrote for the majority. But the New London plan was part of a "'carefully considered' development plan," the land was being taken for a "public purpose," and thus did not violate the Constitution. Justice O'Connor, in dissent, direly warned that "[t]he specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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