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24 June 2005



Some great commentary on this decision can be found here - and here. Don Boudreaux also has a nice post at Cafe Hayek.


Some of the response to the Kelo decision has been that private property needs a political constituency, a "just say no to takings" campaign. That's probably not a bad idea but Boudreaux, in a letter sent to the Christian Science Monitor, puts the response in proper context:

To the Editor:

In light of the Kelo ruling that greatly expands government power to seize private property, you advise that the best way now to protect our homes and businesses is for us “to be more involved in local and state government” (“One’s Castle, Another’s Mall,” June 27).

Perhaps. But how distressing. Buying property, paying taxes on it, and using it lawfully are no longer sufficient. Now each owner must also play politics, learn the arts of coalition building and P.R., and hope that he can offer politicians bribes that are large enough to compete with the offerings of wealthier wannabe owners of his property.

Donald J. Boudreaux
Chairman, Department of Economics
George Mason University


There's a wonderful editorial in today's Wall Street Journal (27 Jun 2005) by Richard Epstein on the subject, titled "Supreme Folly."

Some quotes:

"There are, however, good reasons why the public use language has long been extended to cover some cases of takings for private purposes with indirect public benefits. One recurrent problem of social coordination arises when one party is in a position to blockade the productive ventures of another. To take a real historical example, assume that the owner of a mine (who has no choice on where to dig) can only get his ore to market by ferrying it over scrub lands owned by another individual. That second landowner can demand a huge chunk of the mining profits for his trivial contribution to the overall venture. For over 100 years, the Supreme Court has allowed the state to condemn the obstructing property for the mine owner upon payment of just compensation, here measured by the trivial losses sustained by the obstructing landowner. The net gains from blocking the holdout are huge."

But, he goes on...

"In the present case, Susette Kelo and her fellow plaintiffs have not tried to extract some unconscionable gain out of some sensible business venture. They have no desire to sell their homes at all. At the same time their subjective losses have been enormous. It was a perfectly sensible line for the Court to say when subjective values are high, and holdout problems are nonexistent, the requisite public use is not present.

The Court could only arrive at its shameful Kelo ruling by refusing to look closely at past precedent and constitutional logic. Courts that refuse to see no evil and hear no evil are blind to the endemic risk of factional politics at all levels of government. And being blind, this bare Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all."

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