Property and privilege.

• Author: Epstein, Richard A.
• Position: Land acquisition by government

The recent dreadful decision of the United States Supreme Court in Kelo v. City of New London held that New London could take the homes of ordinary citizens in the name of urban planning. It didn't seem to matter to the five-member majority that the city's porous redevelopment plan did not evince any intelligible purpose, let alone the public use that the Constitution requires.

The good news in the aftermath of Kelo is that it has forced people, especially on the political left, to rethink their views on the place of private property. Ever since the decisive and wrongheaded New Deal decisions in the mid-1930s, the Supreme Court has by and large held that the constitutional protections of private property should be read weakly so as to allow governments to act in ways that advance some notion of the common or public good. The underlying liberal vision was that private property was the instrument of individuals of privilege and power, which had to be cut down to size by an alert legislature that had the interests of the little man at heart. The liberal justices on the Supreme Court have accordingly done everything to give their blessing to local land use condemnation and regulation.

Kelo shows the utter fatuity in that position. There is of course every reason to believe that people with great wealth will use their power and influence to turn legislative decisions in their direction. But it hardly follows that private property is the villain of the piece. In many cases, the system of strong property rights works to protect people of limited wealth from the machinations of others. This defensive use of private property was evident to such philosophers...