Author: Timothy Sandefur
Jeff Benedict, author of Little Pink House, about the infamous Kelo decision, explains how history might have come out differently.
Of course, it is somewhat gratifying to think that at least one judge thinks about these issues differently now. But remember that the Kelo decision, at both the state and federal levels, was not much of a novelty. It came as only the latest unfolding of a very longstanding hostility to private property rights and economic liberty among judges and legal academics. Berman v. Parker, which upheld the use of eminent domain for the benefit of private developers, was a 1954 case, and was unanimous, as was the similar 1984 case of Hawaii Housing v. Midkiff. True, there were important differences in Kelo, but the "rational basis" doctrine that is the heart of the Kelo case is more than 75 years old now, and the legal community in general still believes quite strongly that Ms. Kelo had no real right to her home; that property rights are the gift of the government and that the government can rearrange private property to serve whatever political elites think is a good idea. And Justice Palmer still believes that "our court ultimately made the right decision…. [J]udges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law's constitutionality."