Justice David Souter wrote the majority opinion in the case of Kelo v. City of New London, a very disturbing recent case about which I have blogged recently. The case is disturbing to me and many others because it justifies the taking of private property under the Fifth Amendment for no better reason than that a local government thinks that redevelopment of a particular area might be good for the economy, and that shouldn’t be a good enough reason to take someone’s home from them without their consent and generally without paying them what the property is really worth, and give that property to another private person (who is likely to be politically well-connected).
Justice O’Connor began her dissent by quoting Calder v. Bull, a case from 1798, but did not include quite enough of the language. I would have quoted Justice Samuel Chase’s opinion more fully than she:
I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.
A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property.
3 Dall. (3 U.S.) 386, 387-8 (emphases added). This, sadly, no longer seems to be the law of the land, thanks to what is widely believed to be a switched vote by Justice Souter. So it’s supremely ironic that Justice Souter’s own home may be subject to condemnation for economic redevelopment purposes. Granted, the proposal seems to be mean-spiritedly motivated by someone as upset as I about the Kelo decision, but it amply illustrates the reasons why this new opinion represents a departure from our traditional notions of justice and property rights.