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. 

On Kelo:

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.

Ben Barros disagrees with Ely's blaming Justice Stevens for "eviscerating" the Public Use Clause, noting that Berman and Midkiff established well the precedent for deference to government in determining what is necessary for the public benefit.  But while Justice Stevens' opinion certainly relied on Berman and Midkiff, I have always thought that was really drove the opinion was less a matter of stare decisis (but useful to cite precedent, especially since Justice O'Connor wrote the opinion in Midkiff), and more of an overall comfort level with the fact that the New London takings were part of a comprehensive redevelopment plan designed by a wide range of government officials and agencies.  

Ilya Somin also blogged Ely's op-ed with some interesting observations, and linked to Ely's 2005 article Poor Relation Once More and his definitive history of U.S. constitutional property rights, The Guardian of Every Other Right.

Ely concludes with a recommendation for the Senate regarding Stevens' nominated replacement:

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.

Matt Festa