A Footnote on Kelo

I’m still amused at conservatives who call the Kelo decision “activist” and make it an exhibit in their jihad against “activist” judges. See the House Republicans, the Alabama Policy Institute, or the American Conservative Union.

But the Kelo decision wasn’t wrong because the Court was activist. It was wrong because the Court failed to actively enforce the Constitution’s restrictions on government. As Richard Epstein wrote in a Wall Street Journal column, “Justice Stevens’s lamentable opinion was the polar opposite of judicial activism. Indeed, it represented a deadly form of judicial deference to legislative action that makes a mockery of both the text and purposes of the ‘Public Use’ Clause.”

Of course, just to complicate the matter, one could say that a court is activist when it finds powers for government that are nowhere granted in the Constitution. In that case, the Kelo Court was activist.

That’s the kind of activism Randy Barnett was getting at when he wrote:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony? …

Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment? 

But conservatives cannot complain that the Kelo decision was another example of judges overriding the decisions of elected officials, which is their usual definition of “judicial activism.” In this case, the judges lamentably deferred to local elected officials, ignoring the property rights protections in the Constitution.