You can't have progressive government without leaving skin on the sidewalk. That's the essence of Professor Jedediah Purdy's jeremiad against Professor Ilya Somin's recent book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. In his book, Somin analyzes and vigorously criticizes the Supreme Court's widely-reviled decision in Kelo, in which the Court held 5-4 that the Fifth Amendment's Takings Clause did not prevent the New London Development Corporation, exercising the government's power of eminent domain, from bulldozing an entire working class neighborhood--including Susette Kelo's now-iconic little pink house--to make way for luxury housing, office space, and other facilities that would support a headquarters that Pfizer, Inc. had agreed to build nearby. (The plan ultimately fell through--while the neighborhood of Fort Trumbull was bulldozed, the land today lies barren.) While Purdy professes concern about eminent domain abuse and with "opaque, corporate-friendly, not entirely scrupulous government," he urges readers to reject Somin's analysis on the grounds that it is inconsistent with the true meaning of the Fifth Amendment, inconsistent with how Purdy believes judicial review should be performed, and depends upon an understanding of the Constitution that he claims would, if broadly accepted, "complete the destruction and burial of the New Deal."
Purdy is wrong about the Fifth Amendment, wrong about judicial review, and wrong about the supposedly dire consequences of the approach advocated by Somin and other libertarians who argue that judicial engagement--fact-sensitive, conscientious judicial truth-seeking into the constitutionality of the government's means and ends--is required whenever plausible abuses of government power are alleged. Despite his best efforts to paint Somin as a radical whose ideas would bring about a dystopic state of affairs in the future, Purdy manages only to demonstrate his own willingness to create such a state of affairs for real people today.
Purdy begins by arguing that although the Framers of the Constitution were very attached to property rights, they largely left those rights to be protected "mainly through the political process"--with the notable exceptions of the Takings and Due Process of Law Clauses of the Fifth Amendment. This is a strange argument--the Fifth Amendment is dispositive evidence that the Framers did not leave property rights to be protected entirely through the political process, and the relevant question is what those protections consist in. But Purdy does not offer an interpretation of the meaning of any of the Fifth Amendment's terms, nor does he address the wealth of evidence Somin provides concerning state courts' understandings of the term "public use" at the time of the adoption of the Fourteenth Amendment (which, among other things, expressly made the Bill of Rights' guarantees enforceable against the states). Instead, he relies upon two Supreme Court cases decided in latter half of the 20th century, in which the Court interpreted the Fifth Amendment's requirement of a "public use" to require only an ill-defined public purpose. In discussing these cases, Purdy makes no effort to demonstrate that the Court accurately interpreted the Takings Clause, or to engage with scholarship (including Somin's own) arguing that the Court wrongly deprived the Takings Clause's requirement of a "public use" of any meaning. In summary, Purdy's discussion of the meaning of the constitutional provision at issue in Kelo is an extended exercise in question-begging.
What, then, was the Takings Clause in fact designed to accomplish? The Framers, following John Locke and Sir William Blackstone, were indeed deeply attached to property rights. As Professor Richard Epstein has written, the Framers believed that the protection of property--understood in the broad sense of "lives, liberties, and estates" --was the primary purpose of government and sought to ensure that the government "would not pass laws that encroached upon the property rights that government was designed to protect." For Founding-era jurists, taking property from A and giving it to B for B's own benefit was a paradigmatic example of illegitimate government conduct that did not merit the name of "law." Reading the Takings Clause against this backdrop illuminates its true purpose: To ensure that the power of eminent domain is exercised only to better enable the government to protect the lives, liberties, and estates of all--not simply to distribute benefits to a favored few.
Perhaps sensing the weakness of his Fifth Amendment argument, Purdy follows it with an argument concerning the proper role of the judiciary. Purdy advocates an approach to judicial review that tracks a famous, extraordinarily influential footnote in United States v. Carolene Products (1938). In Footnote Four, a Court that had come to accept longstanding criticism of its defense of the right to earn a living--a right that the Court has consistently affirmed, although it is not expressly listed in the text of the Constitution--stated that it would offer "regulatory legislation affecting ordinary commercial transactions" a heavy presumption of constitutionality. But the Court left open the possibility that "more searching judicial inquiry" might be called for when rights specifically enumerated in the Constitution are infringed or legislation targets "discrete and insular minorities." This approach--heightened judicial scrutiny for "fundamental" rights and legislation targeting certain minorities, heedlessly deferential "rational-basis review" for everything else--became judicial orthodoxy. Footnote Four rests upon the premise that, as Purdy puts it, "the point of judicial review... [is] to backstop the political process in cases where unpopular or powerless minorities would predictably and repeatedly lose in the hurly-burly of politics." The idea is that the legislative process is generally representative of all citizens' preferences and that it generally produces legislation that is consistent with the rights of all. There are exceptions, however--Purdy offers laws disadvantaging blacks as a paradigm case--and judges should take a "hard look" in those cases.
Footnote Four's theory of judicial review--and Purdy's--is irredeemably flawed. There is no constitutional basis for distinguishing between "fundamental" rights and other genuine constitutional rights and applying a less rigorous (often toothless) standard of review to the latter. Indeed, as Professor Randy Barnett has observed, Footnote Four defies the express command of the Ninth Amendment, which states that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Further, as the august liberal constitutional scholar Bruce Ackerman has pointed out, Footnote Four is "bad political science"--it rests upon false premises about the political process. In reality, "discrete and insular" groups can mobilize quite effectively and it is "anonymous and diffuse" groups that "find it most difficult to protect their fundamental interests." Thus, it will not do for Purdy to simply state that property owners "are not a weak, small, or disfavored group" and that they can "can look out for themselves"--clearly, the residents of Fort Trumbull could not do so, given the powerful corporate, state, and municipal forces arrayed against them.
Purdy's final argument is that, however "sympathetic" Susette Kelo may be, you cannot make an omelet without breaking eggs--or bulldozing homes. Purdy claims that Somin's criticism of Kelo "is a brief against democracy generally as the rule of special interests and the ignorant" and that Somin's "solution is that libertarian judges should do more to protect property rights"--and that, Purdy concludes, "is the last thing we need." Purdy does not, however, engage with Somin's arguments concerning the reality of the democratic process--arguments that are supported by a growing body of public-choice scholarship, including Somin's own--nor does he explain precisely what calamities would befall us if courts did prohibit the government from bulldozing homes for the benefit of powerful economic actors like Pfizer. "Sometimes economic development really does benefit from public coordination," Purdy contends. But judges must decide concrete cases, and the Kelo Court did not require the government to provide any evidence that the proposed takings were likely to actually achieve the claimed economic benefits that provided their justification--and of course those benefits never materialized (indeed, they often do not). We are left with the proposition that, in order to avert purely speculative harms inflicted by "libertarian judges" upon the "economically vulnerable," judges should rubber-stamp government conduct that imposes certain, devastating harms upon the "economically vulnerable" right now.
Purdy's essay is entitled "This Land Is Our Land." The irony is painful. As Purdy notes, the Kelo decision prompted an unprecedented backlash, with 45 states passing laws "restricting or forbidding public condemnation of land for private economic development." Ordinary Americans had been under the impression that our land-- that is, America-- was different from other countries in the respect that it accorded property rights, and that tax-hungry bureaucrats could not take their homes from them at the behest of predatory corporations. Simply put, they had understood themselves to be living under a Constitution that guaranteed that their land belonged to them. They were right--and the Court should give Kelo the bulldozer treatment, post-haste.