Unhappy Anniversary: Kelo's 'Public Purpose'


by Timothy Sandefur

Donald Boudreaux of George Mason University (and the Cafe Hayek blog) has this article about the Kelo anniversary, in which he points out the real heart of the matter, namely, the legacy of Progressivism:

Kelo disturbed many non-“progressives.” They point out that that “public use” does not mean “public purpose”—and that “public purpose” is too vague a standard. They note also that deferring to legislatures’ claims that property seizures serve a “public purpose” mocks the Constitution’s complementary goals of restraining government power and protecting citizens’ liberty and property….

“Progressives” reject this founding-era skepticism of government. To them, early Americans’ embrace of self-responsibility, private markets and freedom revealed an unfortunate blindness to the fact that government is our friend and servant.

Indeed, today’s “progressive” attitude toward government goes beyond believing it to be our boon companion. Truly “progressive” thinkers regard government as the font of all our blessings, the very source of society.

As declared recently by University of Chicago law professor Cass Sunstein, “Private property depends on property rights, which do not exist without government and law.” He is inspired by none other than FDR who—to justify his administration’s unprecedented control over the economy—opined that “the exercise of…property rights might so interfere with the rights of the individual that the government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism but to protect it.”

For more on Progressivism, check out the recent books by Richard Epstein and John Marini and Ken Masugi. I also discuss how Progressivism led to the Kelo decision in my new book, as well as in this article, which will appear in the next Chapman Law Review.