June 24, 2006 6:01PM # A Footnote on Kelo By [David Boaz](https://www.cato.org/people/david-boaz) --- SHARE 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](http://policy.house.gov/files/kelo.pdf), the [Alabama Policy Institute](http://www.family.org/cforum/fnif/commentary/a0037062.cfm), or the [American Conservative Union](http://www.conservative.org/pressroom/06232005_un.asp). 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](http://volokh.com/2004_05_02_volokh_archive.html#108393546356069984) 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. ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).