In a 5-4 decision today, the Supreme Court decided that government may take private property from individuals for private-sector economic projects. No more can you hold out and refuse to sell your home when the next developer wants to bulldoze everything and put up a shopping mall or office building.

At issue in Kelo v. New London is whether the Takings Clause of the Fifth Amendment permits government to take property for private development projects. Read it for yourself:

. . . nor shall private property be taken for public use, without just compensation. — U.S. Constitution, Fifth Amendment

So how does a private office complex qualify as a public use? It was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” As usual, the dissenting opinions bring the issue into crystal clarity.

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. — Thomas, J., dissenting

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. — O’Connor, J., dissenting

The effect of this decision will be exactly as Justice Chase wrote 200 years ago in Calder v. Bull: 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.” They didn’t; this Supreme Court, however, has. Your home can now be condemned at any time for any reason and your land turned over to anybody for any purpose.

This isn’t the first bad decision to come out of the Supreme Court this month. In Raich v. Ashcroft the Court ruled that growing marijuana in your back yard for your own personal consumption qualifies as interstate commerce and therefore falls under the jurisdiction of Congress, even when the marijuana never crossed state lines, and never was bought or sold.

More commentary at Hit and Run. See also AP story.

Update 24 June: Liberty for Sale has an excellent commentary on the ramifications of this decision.