- The Washington Times - Thursday, May 13, 2010

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. Thus, a beachfront owner prevented from building a structure on his own land, or a store owner expected to give part of her land to the city for a bicycle path in order to enlarge her store found no sympathy from Justice Stevens. Instead, Justice Stevens regularly expressed naive trust in the good faith and expertise of planning officials. To his mind, meaningful protection of individuals from excessive regulation would impede local planners in fashioning land-use controls. Justice Stevens clearly favored legislative discretion over the rights of individual property owners. Indeed, in 2005, writing for the court, he raised procedural hurdles that make it very difficult even to litigate a regulatory takings claim in the federal courts.

Justice Stevens’ propensity to minimize the rights of property owners was demonstrated vividly in his opinion in the controversial case of Kelo v. City of New London (2005). At issue was a city economic redevelopment plan under which land acquired from residents through eminent domain would be transferred to private parties for the construction of new residences, stores and recreational facilities. The impetus for this scheme was the expectation of new jobs and enlarged tax revenue. In particular, Pfizer Corp. helped instigate the redevelopment plan in the hope that the new facilities would benefit its planned new headquarters. The area slated for redevelopment was a middle-class neighborhood that was not blighted or dilapidated. A few of the neighbors challenged the condemnation on grounds that it was not permissible under the takings clause of the Fifth Amendment, which limits the exercise of eminent domain to “public use.” Writing for the court majority, Justice Stevens rejected this argument and upheld the taking of property for economic development purposes. He stressed heavy deference to governmental determination of what amounted to public use and was especially impressed with the notion that this taking was part of a development plan.

On its face, the supposed plan by the city was incomplete. Because Justice Stevens barred courts from attempting to “second guess” the quality of a plan, as a practical matter, municipalities could easily prepare a plan that in reality benefited private interests. There is yet another problem with the Stevens opinion. The very purpose of the Bill of Rights is to safeguard individuals from abuses of governmental power. Broad deference to the officials it is intended to restrain is inconsistent with this purpose.

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout. In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

The Stevens opinion in Kelo aroused a widespread furor, indicating how far Justice Stevens was removed from popular attitudes. In fact, Kelo was among the most unpopular Supreme Court decisions since the World War II era. A large number of states enacted laws to curb free-wheeling exercise of eminent domain, although the effectiveness of such measures varies considerably. The key point is that the Stevens opinion hardly reflected any grasp of how law “affects the daily lives of the American people.”

The framers of the Constitution and Bill of Rights believed that protection for private property was essential for self-government and individual liberty. In sharp contrast, Justice Stevens invariably manifested statist thinking about the property rights of individuals. His legacy is a testament of how far we have wandered from the constitutional vision of the framers.

Hopefully Elena Kagan, Mr. Obama’s nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however, Ms. Kagan’s record with respect to property rights is a blank slate. It certainly would be appropriate for senators at Ms. Kagan’s confirmation hearing to ask about her thoughts on this subject.

James W. Ely Jr. is an emeritus professor of law and history at Vanderbilt University.