I’ve received lots of e-mails suggesting the problem with the Kelo decision is that now state and local governments have a free hand to use eminent domain. I recognize that this is how the case has been presented in many news stories, but it’s misleading in two important respects. First, this has been the law on the ground for years. As a practical matter, there has been no federal limitation on the use and abuse of eminent domain by state and local governments for decades. The only victories property-rights activists have had in this area have been in state courts or the political process. Kelo doesn’t “expand” state and local government power, it confirms it. The court didn’t cut back on protection of property rights. Rather, it refused to enhance such protection.

Second, the language of both Stevens’s majority and Kennedy’s concurrence is more restrictive than Justice O’Connor’s majority opinion in the 1984 Midkiff decision. In Midkiff, O’Connor suggested “public use” was anything that made it through the legislature. Nothing in Stevens’s or Kennedy’s opinion goes quite that far — and nothing tells state courts to back off.

For more on Kelo, I recommend the SCOTUSBlog discussion here.