This coming Monday, June 23, is the third anniversary of the infamous Kelo decision.  While I think in terms of precedent it is an unremarkable decision, it is remarkable that there is such a disregard for constitutionally protected property rights in our jurisprudence.

Although eminent domain has been considered an inherent power of sovereignty, the Framers recognized a need to limit its exercise in order to protect individual liberty.  The Fifth Amendment states that “[Nor] shall private property be taken for public use without just compensation.”  Rather than a GRANT of power, this is a limitation on power – that it why it is in the Bill of Rights.  It sets forth a fundamental limitation on power.  The property rule is that no property can be taken UNLESS for a public use – your dominion over your property means you should have a right to exclude even the government from interfering with it.  The liability rule is that if the government can prove necessity to invade your dominion, they must pay when they dispossess you from your property.  Kelo and other decisions have made these limitations operationally meaningless – because the right to exclude is extinguished when the courts have decided that a “public use” is whatever the legislature says it is even when it means the ultimate transfer from one private entity to another.

For a debate on the issue from the Hugh Hewitt radio program, on October 13, 2006, listen here for Kochan v. Parlow on Eminent Domain..

Kelo, as an example of the diminution of property rights, has raised the ire of many – inciting "Stop Eminent Domain Abuse" campaigns and actions across the country.  Some progress has been made by these efforts, some may still come, but most progressive efforts are probably futile.  The reasoning in the Kelo decision has become so engrained in an acceptance of “social planning” that it will be difficult to ever overcome.

A weak “public use” clause, as reinforced by Kelo, simply re-enforces opportunities for interest-groups to latch on to the idea of economic planning for their own self interest.  I address that issue in greater detail in a past article and you can download that article here.  The abstract of that article is below.

Abstract:     
This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by institutional tendencies inherent in the independent judiciary.

Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it on the grounds that the condemnation is private in nature. Interest groups will invest in obtaining condemnation actions for their own private purposes -- in pursuit of an ultimate title transfer, an increase in the value of adjacent property owned by that special interest, or a harm to a competitor. While institutional structure might make it impossible to increase the costs of successfully defending a condemnation in the courts, structural change can be implemented.

Applying the seminal work of Landes and Posner on the independent judiciary, this Article proceeds to illustrate that the toothless public use doctrine provides proof for their hypothesis that the judiciary exhibits a tendency to enforce interest-group bargains according to their original terms. The best means for preventing interest-group capture of the condemnation power is to increase the costs of obtaining condemnations.

Proposals which increase the costs of obtaining condemnations are the best hope for impeding rent-seeking through eminent domain. Methods should be established to force more interest groups to bargain in the competitive marketplace for the property they wish to either acquire or transform. This forced bargaining may even inspire the creation of innovative solutions to the holdout problems that sometimes are claimed to justify the use of condemnation.

Donald J. Kochan, "Public Use" and the Independent Judiciary: Condemnation in an Interest-Group Perspective, 3 Texas Rev. L. & Pol. 49 (1998)..