The End of Private Property Rights in America?

That's what some are saying about today's Supreme Court ruling in Keno v. City of New London. (The opinions are available online here. Hat tip: SCOTUS Blog.) I don't think the situation is that dire, nor do I think that the Court's decision is necessarily a "nonconservative" one. Here's why:

At the time it was written and ratified, the Bill of Rights wasn't intended to be applied to the states. The Supreme Court confirmed that fact in its Barron v. Baltimore decision, which like Keno, also involved the Fifth Amendments takings clause.

Writing for the Court in Barron, Chief Justice Marshall wrote, "Had the framers of these amendments [referring to the Bill of Rights] intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention." More specifically, he said that "we are of the opinion that the provision in the fifth amendment of the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercises of power by the government of the United States, and is not applicable to the legislation of the states."

Marshall's opinion in Barron remained the law of the land throughout the 19th Century. It wasn't until the first half of the 20th Century that most of the provisions of the Bill of Rights were "incorporated" under the 14th Amendment's due process clause to apply to the states. Whether and how to apply the incorporation doctrine is still a source of controversy, particulary among conservatives. (See NRO Corner posts here, here, and here, for example.) But, it's clear that the few diehard conservatives who oppose the incorporation doctrine in its entirety should applaud the result of today's ruling, even if they object to its reasoning.

Most conservatives, though, have come to view incorporation as a settled matter which shouldn't be overturned. Others openly endorse it and believe that it fulfills the original intent of the 14th Amendment, even though they may disagree with how the doctrine was developed and how it has evolved. From this perspective, it seems to me that a valid originalist argument would go something like this:

The Fifth Amendment's takings clause says "nor shall private property be taken for public use, without just compensation." It's context is the entire U.S. Constitution and its express delegation of certain powers to the Congress. In addition to the delegated powers, the Constitution authorizes Congress to exercise powers which are "necessary and proper" to the execution of the delegated powers. The objects of these powers - delegated and implied - must be considered valid "public uses," insofar as they are authorized by the U.S. Constitution. Taking private property as a means to a constitutional end is essential to the operation of the federal government and consistent with the Constitution's "necessary and proper" clause, but when property is taken for such a public use, the Fifth Amendment demands that just compensation be provided.

Applying the takings clause to a state government would proceed along the same lines, but in the context of the state constitution, not the federal constitution. Since states are the interpreters of their own constitutions, it is for them to decide what constitutes a "public use," just as the federal government makes that determination for itself in light of the U.S. Constitution. Thus, under the takings clause, states have the right to appropriate private property for any purpose that is consistent with their constitution and statutes, as long as they provide "just compensation."

I hope that no one accuses me of advocating the devil here, but it seems to me that in this case, conservative attacks on the Supreme Court are misdirected. The real devils are the state of Connecticut and the city of New London, who should bear complete responsibility for this appalling abuse of power.