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Wednesday, May 24, 2006

Sandefur on Kelo

Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project) has posted Mine & Thine Distinct: What Kelo Says About Our Path on SSRN.  Here's the abstract:

In Kelo v. New London, the United States Supreme Court allowed state officials to seize homes and businesses and transfer the property to private owners for development, even though the Constitution declares that government may only take property “for public use.”

Kelo was greeted with popular outrage and calls for political reform. But few commentators have discussed the fact that it represents a fundamental change in American political philosophy. In 1829, the Supreme Court said that “a legislative act to transfer the property of A. to B. without his consent” had been “resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.” But by 1978, the Court held that the Constitution does not require compensation when a person’s property is taken for “some public program adjusting the benefits and burdens of economic life to promote the common good,” and in Kelo, the Court held: “Promoting economic development is a traditional and long accepted function of government.”

In this article, I explore the political philosophy underlying this change. I begin with the influence of John Locke, Thomas Hobbes, and William Blackstone on early American courts, and how these courts were divided regarding the boundaries on state power. I then describe the abandonment of Lockean philosophy during the Progressive era, and conclude with a discussion of how this debate is reflected in Kelo and its dissents, and how addressing eminent domain in the wake of Kelo requires philosophical as well as political change.

Ben Barros

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http://lawprofessors.typepad.com/property/2006/05/sandefur_on_kel.html

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