Missouri and the problem with Kelo

The news accounts today make yesterday's Missouri Supreme Court eminent domain decision seem more momentous than it actually was. At issue was whether a state statute permitting a charter city to exercise the power of eminent domain violated the Missouri Constitution. The court held that the statute was constitutionally valid. The court punted on the factual question whether the property taken was blighted and the legal question whether the property was impermissibly taken for a public use. For this reason, one ought not read the decision as a dramatic incursion into private property protection.

However, the decision is noteworthy for at least one reason. The court quotes from the Missouri constitution, which authorizes municipalities to take private property for any of enumerated "purposes" that serve the "public interest," among which are the redevelopment of "substandard or insanitary areas." The court then notes in a footnote that it is not deciding the question whether the taking at issue was accomplished for a "public purpose" consistent with the Missouri constitution.

The prescient reader will note that this provision of the Missouri consitution is far more expansive than the text of the Fifth Amendment to the United States Constitution, which permits governments to take private property only for "public use." In its infamous 2005 Kelo decision, authorizing the taking of private property for private use, a majority of SCOTUS re-wrote the Fifth Amendment by judicial fiat to permit takings for any public purpose. The majority attempted to assuage the reader by assuring that states would adopt more restrictive constitutional limitations on the exercise of eminent domain power. So far, that has not come to pass. Indeed, states hungry for tax revenues have little incentive to respect private property that generates less tax revenue than it might otherwise. This is one of the problems against which the Fifth Amendment was supposed to guard.

Kelo was a shameworthy exercise in judicial activism of the worst kind: the kind that undermines the rule of law. As more states become more licentious in their land-grabbing practices in this post-Kelo world, Americans would do well to consider the implications of electing a President who would put liberal activists like Justices Stephens, Kennedy, Souter, Breyer, and Ginsburg, all of whom voted in the majority in Kelo, on the Court.