Rod’s post provides a good opportunity to note some bizarre line-drawing that results from the Supremes’ handiwork.

The allegedly crooked Dallas pols Rod refers to get a lot more protection from the Court than do innocent citizens. Before the FBI raided the pols’ offices, they first had to get a search warrant by establishing to the satisfaction of a judge probable cause both that a crime had been or was being committed and that evidence of the crime would be found in those offices. Not only that. So deeply concerned is our law with the rights and privacy interests of criminals that, when they become defendants, they get a second bite at the apple: namely, they are permitted to move to suppress the evidence seized on the ground that the search warrant was improperly obtained. If they lose and are convicted, they get to litigate the search all over again on appeal. At each stage, the government must satisfy the court that its reason for doing the search was compelling enough (i.e., satisfied “probable cause”) to overcome the privacy interest.

Under Kelo, however, the innocent homeowner is out of luck. The Court has decided not only on a very lax standard (“public purpose”) for taking property. It also says that with regard to this lax standard it must afford Congress an exceedingly deferential (i.e., virtually non-existent) standard of review. (So that a “public purpose” can now be found if the new private owner will make more profitable use of the ousted innocent homeowner’s property because – even though the general public does not get the use of the property – the tax revenue increases.)

Justice Thomas framed this anomaly nicely:

The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” … when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,”… when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.