Ilya Somin: Scalia Predicts Kelo Will Be Overruled.
Kelo v. City of New London is the 2005 Supreme Court decision that held that a local government could forcibly transfer property from one private owner to another private owner. I’ve previously argued that its holding is inconsistent with the original meaning of the takings clause, which has the very strong negative implication that private property can only be taken for “public use.”
But the question now is: giving the outcome in Kelo, what theory of originalism-plus-precedent allows it to be overruled? To the extent Justice Scalia’s statement is aspirational as well as predictive, it seems somewhat in tension with Scalia’s tendency to temper originalism with precedent. Perhaps the argument is that as a recent precedent Kelo commands less authority, but the immediate prospects for overturning it seem limited. At what point (if ever) does it become sufficiently entrenched that an originalism-plus-precedent theory is compelled to accept it?
This challenge re-affirms the point made here earlier: the theory of originalism-plus-precedent needs a theory of precedent.
I’m not sure that Kelo should, strictly speaking, be overturned. But my view, which I have been trying to develop more comprehensively, is that at minimum no originalism-plus-precedent theory should allow it to be extended. That is, originalists should require that it be limited to its relevant facts (facts given prominence in the opinion). I suspect that in many cases (Kelo being one) a strict application of this rule would mitigate the effects of non-originalist decisions without overruling anything.
Posted at 7:00 AM