Kelo Ruling Gutting Property Rights Will Live On

by Hans Bader on November 15, 2006

in Legal

In Kelo v. New London (2005), the Supreme Court ruled 5-to-4 that private property (like your home) could be seized by the government for use by a politically-connected developer. That eroded property rights a lot.

The 3 conservative justices (Rehnquist, Thomas, and Scalia) dissented from this ruling gutting property rights, along with one “moderate” (O’Connor), while the 4 liberal justices and one “moderate” (Kennedy) joined in the majority opinion gutting property rights. (Since then, two of the dissenters have retired or died).

Now, thanks to the GOP’s loss of the Senate, there won’t be any conservative appointments to the Supreme Court for a long time. At least, that’s what Democratic leader Charles Schumer (D-NY) promises. He says the Senate’s new Democratic majority will block any conservative justices from being appointed to the Supreme Court.

So the bad Kelo decision has a new lease on life.

The Kelo ruling flouted longstanding principles of constitutional interpretation by interpreting the constitution’s public-use requirement as adding nothing to what other provisions of the constitution, such as the due process clause, already require. But as the Supreme Court pointed out in one of its most famous rulings, Marbury v. Madison (1803), no “clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible unless the words require it.”

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