Recently, in Kelo v. New London, the Supreme Court rules that a local government may seize property and turn it over to developers, under the theory that doing so will increase their tax base and therefore provide a public benefit. This has been a controversial decision, revealing splits across different ideological lines than the usual left/right, but in general it seems that my fellow liberals are more inclined than others to accept the decision. I disagree.

Let’s start with what the justices had to say. In one dissent, O’Connor put it like this.

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,” O’Connor wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.

In a separate dissent, here’s Thomas:

The Court replaces the Public Use Clause with a ‘[P]ublic [P]urpose’ Clause, (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational.” This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

Reading the decision now, I noticed that Kennedy had written a separate concurrence (odd that I hadn’t seen anyone else mention it) which makes perhaps the best distinction between legitimate and illegitimate exercise of eminent domain.

A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits

I think Kennedy still doesn’t quite go far enough, though. For one thing, he places the burden of proof on the wrong side when he requires a “clear showing” that the taking is intended to favor a particular private party. Secondly, I think neither Stevens (who wrote the court’s decision) nor Kennedy consider that the preservation of rights is itself a public good, and we are all harmed when those rights are taken away from anyone. Stevens considers only whether the public benefit is greater than zero (to preclude takings that only benefit private parties) while Kennedy considers whether it’s greater than the private benefit (to determine intent) but neither considers the harm which I believe also needs to be part of this calculation. I value even other people’s rights more than a few pennies of my taxes, and I’m sure many others feel likewise. Without requiring that the agency attempting to exercise eminent domain prove that the public benefit minus the public harm is both greater than zero and greater than the private benefit, I think this decision is totally wrong.