The real problem with Kelo: by intervening without jurisdiction in a state-level eminent domain case, the U.S. Supreme Court has imperiled property rights nationwide.

Imagine sitting on the porch of the farmhouse you inherited from Morn and Dad. You have 20 acres on the fringe of a small city, but within corporate limits. Though the city's commercial growth has insidiously crept closer to your land, you have never worried about losing it. It is yours, and so is the view of the rivulet running through it.

But while you are enjoying the verdant vista, a nameless developer, along with nameless city officials, is plotting your land's future. A "better use" for your property, they decided, would be a small industrial park and shopping center. This would encourage "economic development," a euphemism for the increased tax revenue that would occur as a result of giving your land to a large commercial interest.

The plotters offer you "fair-market" price for the land, less than what you would receive if you sold it on the market. You refuse. Five years later, a court rules that the private developer can seize your land with "just compensation."

This scenario, save a few minor details, just played out in Connecticut, the court in question being the Supreme Court of the United States. But what the High Court said is less disturbing than the fact that the court said anything at all. The decision sets a precedent that could acutely affect property owners in all 50 states. But that's just one problem with the case. A second is how the Constitution was misused again by people who should know better.

Official Plunder

The case was Kelo v. City of New London. Using the stalking horse of a private development corporation, New London sought to seize an historic 90-acre neighborhood called Fort Trumbull, which fronted the Thames River. The plan was to build a sprawling compound with office buildings, a hotel, a marina, high-income private housing, and other facilities, near a $270-million complex owned by Pfizer, the pharmaceutical leviathan.

Several Fort Trumbullites stood athwart the city. One had lived in her home since 1918, a home the family has owned since 1901. Another, Susette Kelo, purchased and remodeled a home in 1997. She loved her home, and did not want to sell.

Backed by the libertarian Institute for Justice, Kelo and her neighbors went to court to defend their acre-and-a-half--and lost. If a destitute city wants to pirate a property and sell the ill-gotten booty to another private owner who generates more tax revenue, the Connecticut Supreme Court ruled, then it can. Kelo and her allies next went to the top of the legal food chain, citing the Fifth Amendment's protection against unlawful "taking" of private property. In June, they lost again. In a majority opinion, the U.S. Supreme Court said it could not "second-guess" local governments--a laughable objection, in light of decades' worth of "second-guessing" on matters ranging from property rights to public prayer.

Takings for "public use" have always been associated with using the land for a genuine "public need," such as road construction. But Associate Justice John Paul Stevens, writing for the majority, ruled that a city may seize property from one owner and hand it to someone else because "promoting economic development is a traditional and long accepted function of government." Of course, a practice may be traditional, long accepted, and entirely unconstitutional.

In her dissent, retiring Associate Justice Sandra Day O'Connor protested that such an approach to "economic development" would allow the rich to plunder the poor. The "specter of condemnation hangs over all property," she wrote. "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

O'Connor's point was sound, and her warning resonated with condemnations of the Kelo decision that poured from talk radio programs and filled editorial pages nationwide. The hounds of Capitol Hill, sniffing wind scented with a winning issue, sprang from their haunches. The GOP congressional leadership introduced bills to deny federal funds for projects involving land taken, for economic development, from one private interest and given to another to whom it does not belong. Said House Majority Leader Tom DeLay, "This Congress is not going to just sit by ... and let an unaccountable judiciary make these kinds of decisions."

The Beltway conservatives seem perversely thrilled to be presented with a politically profitable outrage, and direct-mail fundraising machines are whirring 24/7.

Why We Should Care

Though supposed conservatives are "outraged" and promising remedies, we should not blithely dismiss this latest usurpation of property rights. The DeLay-style conservative tub thumpers won't do much about it. They never do. And that's because neither Republican-aligned conservatives nor the libertarians who took the Kelo case to the Supreme Court understand the nature of the decision and what is truly wrong with it. To make the right change, they must first recognize the problem.

Granted, New London's plutocratic acquisition of Fort Trumbull grossly violates property rights. Such taking is theft, and whether the victim is Bill Gates or Bill Jones, black or white, or old or young, is immaterial. As Frederic Bastiat wrote, if it's wrong for a citizen to do something, generally speaking, it is wrong for the government to do it. Yet the genuine problem in Kelo isn't that the court decided wrongly, but that the court decided at all.

What happens to a private-property owner in Connecticut should be none of the federal government's business, and it wouldn't be if not for 1925's Gitlow case "incorporating" the Bill of Rights into the 14th Amendment's protection of due process. That decision applied the Constitution's Bill of Rights to the states. In 1963, Justice Hugo Black mentioned incorporation and takings in Gideon v. Wainwright: "[T]he Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation."

Of course, Black was speaking of "public use," not of private development. But given the prevailing liberal fallacy that our Constitution is a "living" document, that little exception has grown. Now, thanks to the incorporation doctrine, a city can seize property from Citizen A and sell it to Citizen B, if Citizen B will pay more taxes than Citizen A.

Important as property rights are, were our republic functioning as it was designed to, we would be able to view cases such as Kelo with disinterest from afar. What happens to the residents of Connecticut in their courts is not the business of Virginians. What happens to Montanans is not the proper concern of New Yorkers.

The corrupt designs of New London's municipal government illustrate a point James Madison made in The Federalist, No. 10. "Men of factious tempers ... or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people" in a given state or locality, Madison observed. In the "extended republic" he envisioned, the "influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States." The fact that a given state or municipal government may embark on an "improper or wicked project" would not threaten the fights and liberties of those residing elsewhere.

The Institute for Justice rightly fought for Kelo and her neighbors. But the Supreme Court's behavior is more dangerous than Connecticut's. On principle, the Institute should have stopped the fight when its clients lost in the Connecticut Supreme Court. And if the Institute didn't want to stop it, the High Court should have stopped it by rejecting this case, as it should have rejected hearing so many others that are beyond its purview by the plain text of the Constitution. This would have been in harmony with the constitutional mechanisms intended to contain the damage done by corrupt, scheming officials such as those at work in New London.

The appropriate remedy after losing the case locally would have been for the state of Connecticut to rein in its judiciary or (if necessary) change its laws. The solution is not an imperial order from the Supreme Court to change the law everywhere. What Connecticut does affects a few of us; what the Supreme Court does affects all of us. Now, again thanks to the spurious incorporation doctrine and the Kelo precedent, municipalities across America have the U.S. Supreme Court's approval for similar plans.

Some would argue that such takings will proceed regardless of the Institute's crusade, and that the Institute was obliged to defend its clients using the law as it exists, not as we want it to be. The Washington Post, quoting the Institute, reported that the abuse of eminent domain "spawned more than 10,000 threatened or filed condemnations involving a transfer of property from one private party to another in 41 states between 1998 and 2002." Many state constitutions undoubtedly permit this, and such condemnations would continue, the court decision notwithstanding.

But bad as that is, the decision in Kelo may well embolden revenue-starved state legislatures to amend state constitutions to permit New Londonesque plundering, and more municipalities, again, might act likewise. Better that the Supreme Court never heard this case. Likewise, Congress should remain silent on such local issues unless it is going to hogtie the federal courts.

The unconstitutional federal subsidies should be axed anyway. Congress must curb the power of federal courts, including the Supreme Court, by pruning their jurisdiction.

Hoist by Their Own Petard

Beltway conservatives have no right to complain about Kelo. They have courted big government since Reagan's day, and have augmented the powers of the federal judiciary and bureaucracy. Long ago, they conceded the court's unconstitutional arrogation of power. Kelo shows that conservatives are as apt as liberals to use the court to change laws, knock over disagreeable court decisions and policies, and enshrine pet policies into law.

This lawsuit wasn't brought by the American Civil Liberties Union or a left-wing group, but by a right-wing group of libertarians. And Kelo isn't the only recent example of conservative/libertarian activism-via-litigation. Social conservatives tried pushing the case of Terri Schiavo, the woman starved to death in Florida at Easter time, into federal courts.

Thus do assorted right-wingers mimic the methods of the radical left, never anticipating what they might unleash. The right must learn that it doesn't pay to play the left's game.

And cases like this demonstrate how wrong the right can be.