The Right Coast

August 20, 2005
Overruling Kelo
By Mike Rappaport

The Kelo decision, allowing states to transfer property from one private person to another under the eminent domain power, appears to be quite unpopular. Now is the time to take advantage of the public disapproval of the decision, while at the same time disciplining the Supreme Court.

The states and the Congress should start a movement to overrule Kelo by constitutional amendment. Given its apparent unpopularity, it would seem a fair bet that the amendment could pass.

Not only would that amendment improve the Constitution, it would also be an effective way of criticizing the Supreme Court. The nation would be telling the Supreme Court, you are wrong and we don't like it.

In fact, there is much to be said for suggesting, as much as possible, that the amenders believe the Kelo decision was mistaken. One way to do that would be to say: "Notwithstanding the erroneous decision of the Supreme Court . . . .

Another question is how to phrase the requirement that eminent domain should only be exercised for the public. While I suppose one could spell it out, it would be less respectful towards the Supreme Court to refuse to do so. Instead, one could simply say: "public use is public use."

So here is my proposal for an amendment: "Notwithstanding the erroneous decision of the Supreme Court, public use is public use."