May 30, 2010
Ely on Stevens, Kagan and Property Rights
Shortly after Justice Stevens announced his retirement, we posted an article by Prof. John Echeverria on Justice Stevens' career legacy in property law, taking a generally positive view. Last week, Prof. James W. Ely, Jr. (Vanderbilt, law & history) published an op-ed in the Washington Times with a critical view of Justice Stevens' record on property. From Stevens, Kagan, and Property Rights:
However, in at least one important area of constitutional law--the rights of property owners--Justice Stevens' record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives on individuals.
In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout. In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.
Hopefully Elena Kagan, Mr. Obama's nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however, Ms. Kagan's record with respect to property rights is a blank slate. It certainly would be appropriate for senators at Ms. Kagan's confirmation hearing to ask her about her thoughts on this subject.
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