A Kelo of Overreaction

I have never been so disappointed with the legal blogosphere.  The Volokh Conspirators and Bainbridge seem to have completely missed the boat on Kelo.  Todd Zywicki is "astonish[ed]" that the Court took the novel step of upholding a century of precedent, and David Bernstein suggests that it required "legal gymnastics" to do so.  Bainbridge finds the result "shocking."  Who knew that Supreme Court adherence to well-established case law could be such a surprise to law professors?

Not everyone is drinking the kool-aid.  My co-blogger Dave seems immune to the Kelo hysteria, and points to a few other hardy souls.  Instapundit belatedly concedes the issue as well.  Meanwhile, in a great explanation of the real (and very limited) place of Kelo in the Takings Clause jurisprudence, Marty Lederman at Scotusblog notes that

Kelo is entirely consistent with well over 100 years of established precedents . . .  Does anyone disagree with this? In order for Kelo to win, wouldn't the Court have had to overturn numerous longstanding precedents?

Why yes, it would have.  Just a few of them: 

Block v. Hirsch (1921).  The Court holds that "circumstances have clothed the letting of buildings in the District of Columbia with a public interest so great as to justify regulation by law."  256 U.S. at 155.

U. S. ex rel. Tenn. Valley Authority v. Welch (1946).  The Court writes that "We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority."  327 U.S. at 551-52.  Justice Frankfurter's concurrence notes that " in the numerous cases in which the [public use] issue was adjudicated, this Court never found that the legislative determination that the use was 'public' exceeded Constitutional bounds."

Berman v. Parker (1954).  A unanimous Court writes that:  "Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. . . . The role of the judiciary in determining whether that [eminent domain] power is being exercised for a public purpose is an extremely narrow one."  348 U.S. at 31.

Midkiff (1984).  The Court notes that "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the   Public Use Clause."  467 U.S. at 241.   

The Midkiff court also notes that: 

The "public use" requirement is thus coterminous with the scope of a sovereign's police powers.  There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. TVA v. Welch, which emphasized that "[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields." In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation."

467 U.S. at 240-41.  (emphasis added). 

It's really hard to imagine the case law being much clearer.  Kelo upheld long-standing law on the Takings Clause, Justice O'Connor's strange citation to dicta from Calder v. Bull notwithstanding.  Further, the Kelo court did so by only a 5-4 margin, with a concurrence that may end up limiting the government's ability to take property.  (Kennedy's concurrence is pregnant with implications, and the Scotusblog crew is doing a great job of discussing some of them).

Of course, one may disagree with the propriety of existing case law.  Still, it's quite clear that any descriptive statement to the effect that Kelo itself has taken away protections previously afforded by the public use requirement, could only be made by ignoring a century of consistent case law.  The public use requirement was already all but non-existent, and Kelo simply upheld the long-standing status quo.  The public-use horse left the barn a long time ago, fellows.