Stevens, Kagan, and Property Rights

James Ely takes a look at Steven's record on property rights and the upcoming confirmation process of Elena Kagan.

In seeking a replacement for retiring Supreme Court Justice John Paul Stevens, President Obama indicated that he wanted to name someone in the Stevens mold. Among the qualities of Justice Stevens that Mr. Obama hoped to find in a successor, the president noted "a keen understanding of how the law affects the daily lives of the American people."

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 of individuals.

Consider Justice Stevens' thinking with respect to the regulatory "taking" doctrine. It has long been held that regulations might so severely restrict the use of property as to amount to a taking of such property, for which payment of just compensation is required. Yet the Supreme Court has found it difficult to articulate a formula to govern regulatory claims. Under Chief Justice William H. Rehnquist, the court moved incrementally to enlarge the protection afforded property owners faced with onerous regulations.

Even those modest steps, however, were too much for Justice Stevens, who regularly dissented in regulatory taking cases. Justice Stevens was seemingly oblivious to the plight of individuals who were singled out to bear a burden more appropriately shared by society as a whole.

Article via Ilya Somin, who adds

As I have argued previously, there is a potential for fruitful left-right alliances in this area. Many left-wing organizations and activists, including the NAACP, Rep. Maxine Waters, and Ralph Nader, vehemently opposed the Kelo decision because they correctly recognized that giving government unconstrained power to condemn property and transfer it to private parties would tend to victimize the poor, minorities, and the politically weak. ...

In the federal Supreme Court, property rights issues have split the justices along left-right lines over the last thirty years. But as the left-wing reaction to Kelo demonstrates, such a division is not inevitable. In some state judiciaries, liberal judges have voted to enforce tight state constitutional restrictions on eminent domain and exclusionary zoning, a point I discussed in the last part of this article.

If he is so inclined, it is not too late for President Obama to start appointing relatively pro-property rights liberals to the federal courts. Breaking the ideological logjam that has hobbled federal judicial protection of constitutional property rights would be an admirable example of change we can believe in.