In one of the most closely watched cases from the last Supreme Court term, Kelo v. New London, the U.S. Supreme Court, by a 5-to-4 majority, ruled that the city of New London could exercise its “eminent domain” power to condemn several private residences in order to raze them as part of an effort to revitalize a downtown area adjacent to a new Pfizer plant. The purpose of this effort was to put these properties to a use supposedly more beneficial to the residents of the city, which had been suffering economic decline, by increasing opportunities for recreation, shopping, and housing—and to increase tax revenues from the urban-renewal project. Most of the property for the project was sold willingly, but several owners of single family residences, one of which had been in the same family for over a century, resisted. The Fifth Amendment—originally designed to prohibit acts by the federal government but now expanded by somewhat dubious construction to apply against state and local governments—provides that no person may be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This amendment is the source of the eminent-domain power, which permits the taking by federal, state, or local governments, so long as “just compensation” is paid by the government; but such taking may only be for a “public use.”

The most important question in Kelo was whether the city New London’s aims amounted to “public use.” There is no doubt that the original understanding of that language was to cover situations where the public actually had access to and use of the property in question, including cases, for example, where property had been taken for roads, railroads, bridges, courthouses, and the like. This was the main point made in Justice Thomas’s characteristically excellent dissenting opinion in Kelo. In such situations, of course, not only use but ownership could be said to be public, but, in the New London project, much of the property was eventually to be in private hands, to be used for parks, parking, shops, and residences. The public would have access to some, but not all, of this. Viewed in the starkest terms, what the city of New London was up to was a transfer of property from one private party (the displaced homeowners) to other private parties (the commercial developers and, ultimately, new residents). This was justified because, following this development and transfer, New London might be better off financially, and the securing of these potential economic gains was said to be a valid “public purpose.”

There was some Supreme Court language from earlier cases suggesting that “public use” and “public purpose” could be construed as the same thing, although, as Justice Thomas correctly pointed out in his dissent, the original ruling to that effect was “dicta“—a conclusion that is not binding on future courts because it was unnecessary to the ruling in the particular case. The case in which “public purpose” was first made the equivalent of “public use,” an opinion by the rather irascible and generally backward looking Rufus Peckham, concerned an irrigation project where there would have been general public access to the water. Nevertheless, building on that case, other Supreme Court decisions had ruled that, as long as “just compensation” was paid, it was all right to take a profitable department store and condemn it as part of a larger project in order to build new housing and remove urban blight, and that it was permissible for the state of Hawaii to take property from large landowners and then sell it to those who had formerly rented the property, in order to spread the benefits of property ownership among a larger group. These had been justified as “public purposes,” although the last seems to have bordered on pure redistribution, and maybe even socialism. Considering these two cases, Justice Stevens concluded for the majority in Kelo that New London’s public purposes were no less laudable and could be construed as a “public use.”

In dissent, Justice O’Connor, speaking for herself and Justices Rehnquist, Scalia, and Thomas, pointed out that what the Court bad done was essentially to suggest that any government could take the private property of A and give it to B, if it felt that by doing so higher revenues or greater local prosperity might ensue. Her incisive example was that a Motel 6 could be razed and the land turned over to Ritz Carlton, and this would be a valid “public purpose.” She joined Justice Thomas in noting that, if this were constitutional law, then powerful developers and their friendly legislators or politicians might have lower-income residents entirely at their mercy. There is no doubt that the burden of displacement for urban-renewal projects falls disproportionately on the poor, in general, and minorities, in particular, and Justice Thomas reminded us that some have actually (and perhaps correctly) called urban renewal “Negro removal.”

The five justices in the majority (Stevens, Kennedy, Souter, Ginsburg, and Breyer—not normally great friends of federalism) merely followed previous Supreme Court precedent, deferring to state and local governments for their determination of what constitutes a “public purpose.” Slighting protections to private property in the interests of such a liberal goal as urban renewal was consistent with their overall judicial orientation.

One of the primary inclinations of sensible conservatives (indeed, of any sensible American) is to put the protection of private property—particularly, of one’s home—high on the list of the duties of government. Indeed, John Locke, whose thought lies behind the Declaration of Independence if not our whole constitutional scheme, believed that governments ought only to be formed to protect the rights of life, liberty, and property, with which we are endowed by God. These three were, for Locke, inalienable rights that pre-exist government and not boons conferred at the pleasure of temporal sovereigns.

Even the majority in Kelo recognized that the pure taking of one person’s private property to give to another, even with just compensation, was constitutionally impermissible, and both sides quoted some parts of Justice Samuel Chase’s famous statement in Calder v. Bull (1798) about the powers of a legislature and private property. This statement is worth examining more closely than either the majority or the dissent did, because it illuminates what is really at stake here. Wrote Chase,

The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. . . . There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority…. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature .. . cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.

This is almost pure Locke, but it makes clear that, for the Framers (Chase was a signer of the Declaration of Independence and one of the most astute constitutional analysts of the late 18th century), the maintenance of private property was dictated by natural law, which no constitution could alter and no legislature could take away, without committing “political heresy,” behavior intolerable in “our free republican governments.” The giving of A’s property to B by the government was one among a very few such prohibited acts. Still, Chase’s wonderful encomium in favor of Locke and natural law does not tell us what the law or Constitution ought to provide if a taking is compensated. All Chase actually tells us is that there is a strong presumption that property rights, whatever they are, need to be protected. That strong presumption, of course, might lead one, as it led Justice Thomas, to construe the “public use” language in the Fifth Amendment narrowly, and he is probably correct.

Nevertheless, if we are prepared to concede that the power of eminent domain accompanied by “just compensation” is not interference with Chase’s “right of private property,” we cannot say that the majority in Kelo necessarily got it wrong. What, then, ought to be the extent of private-property rights, and who ought to be in charge of defining them? Given the Supreme Court’s recent track record of twisting the meaning of the language of the Constitution in cases involving race, religion, abortion, sex, and a whole host of other topics, we ought to hesitate before answering “the courts,” unless we view the role of the judiciary as simply uncovering the “original understanding,” as Thomas correctly does.

But Thomas’s view remains in the minority on the Court, and, unless George Bush can create a new majority of Supreme Court justices committed to Thomas’s school of jurisprudence (as of this writing, it is too early to tell), the Court will continue to follow dubious precedents. Still, the genius of our political system is that the Court is not the sole voice of proper interpretation of the Constitution. Because of the principles of federalism (allocating the basic tasks of government to state and local bodies) and separation of powers (limiting the jurisdiction of the courts and limiting the making of new law to the legislature), there are other means, if we have the courage to employ them, to protect private property.

And here, the signs actually appear to be encouraging. Almost immediately after Kelo was handed down. Sen. John Cornyn (R-TX) proposed federal legislation to bar cities and counties from using federal funds for economic-development projects that involve seized property and to prevent the federal government from using its eminent-domain powers in the manner that they were exercised in Kelo. Amazingly, Maxine Waters (D-CA), a fiery House member whose ideology is normally 180 degrees from that of Cornyn and other conservatives, has signed on as a cosponsor of the two Republican anti-Kelo bills and proposed two of her own. She was quoted as saying that “The people who get hurt are the many poor people and working people who don’t think they can fight City Hall.” It is probably too much to suggest that a new political coalition could be emerging over property-rights concerns, but something is going on.

Federal efforts in this area would have only limited effect, but there is even more activity at the state level. On August 3, 2005, Alabama governor Bob Riley signed legislation making his state the first to prohibit cities and counties from using the eminent-domain power for private development or for enhancing tax revenue, although the new law contains a loophole allowing the taking of “blighted” properties for development by private interests. This might be an exception, of course, that swallows the new rule. Nevertheless, the efforts currently under way are impressive. To cite a report from the Institute for Justice (IJ),

In the wake of Kelo, legislation has been introduced in seventeen states (Alabama, California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas) limiting the use of eminent domain for private projects or tightening eminent domain procedures. Lawmakers in another seven states (Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin) have announced plans to introduce eminent domain legislation in upcoming sessions. Legislators in Colorado, Georgia and Virginia now hope to revive previously introduced bills. Legislators in Alabama, California, Florida, New Jersey, Texas and Michigan are mobilizing to support state constitutional amendments prohibiting eminent domain for private development. Arkansas, Delaware, Florida, Indiana, Missouri, Tennessee and New Hampshire have created state commissions to study the use of eminent domain and ways of reining in abuse.

As of early August 2005, 27 states were attempting to come up with means of reversing the Kelo decision for their people, and, in another significant development reported by the IJ,

Legislators in Connecticut and New York have called for moratoria on the use of eminent domain until their legislatures can revise the law to protect property owners. The City of New London, Conn., has agreed to abide by the moratorium and allow Susette Kelo and the other homeowners to stay for now.

For the time being, at least, the very persons who stood to lose their private property through eminent domain because of the Supreme Court have gotten a reprieve.

It is too early to declare a big win in the war to protect private property and to return jurisprudence to the wisdom of the Framers, but that is clearly the direction in which state law is moving. And, for sensible conservatives who believe that preserving our federalism is perhaps second only to the preservation of private property itself, this is no small achievement. A country in which the people of the states (or their representatives, acting wisely) take more control over their own lives, instead of being controlled by policies spun by nine ephors in black robes, would be a better one than what we have today. It would be delightful if Kelo turned out to be not a defeat for property rights but a great victory for states’ rights.