Kelo Again

I've written about Kelo v. New London before, and several readers have sent in excellent comments on those posts.  I have just finished reading an article about Kelo -- Professor Julia Mahoney's "Kelo's Legacy: Eminent Domain and the Future of Property Rights," available here -- that I very highly recommend and that seems to me to add something significant to the evaluation of that controversial decision. 

Professor Mahoney's view is that Kelo may have significantly altered the interpretation of the Public Use Clause of the Takings Clause of the Fifth Amendment and thereby given a significant boost to private property rights and imposed a significant constraint on the exercise of the taking power for public purposes.  She notes that the two leading cases on the Public Use Clause -- Berman v. Parker and Hawaii Housing Authority v. Midkiff -- hold that the Court will give legislatures (almost) complete deference in the exercise of takings for a public purpose.  Among other reasons for this deference is the contention that political processes constrain the legislature so that legislators are unlikely to exercise takings for a public purpose in unconstitutional ways.  On this reading of Berman and Midkiff, the Court's holding in Kelo announces a retreat from complete deference to wide-but-not-complete deference. 

How wide will the judicial deference be post-Kelo?  There are only two ways to know.  The traditional way is to wait for courts to resolve future controversies regarding the constitutionality of takings for a public purpose and learn from those decisions where the line of deference lies.  The other way -- the one that I strongly favor -- is to recognize that legislatures, municipalities, and others with the power to take may share Professor Mahoney's interpretation and restrain their taking for public purposes.  If so, then it may be possible to identify, through careful empirical work, behavioral consequences of Kelo.  (Of course, those bodies with the power to take may not share Professor Mahoney's interpretation.  They may, instead, believe that Kelo has removed any vestigial constraints on the power to take for a public purpose and, therefore, expand their exercise of the power of eminent domain.) 

TSU