Kelo and its Progeny

Herewith a glimpse into the future, an excerpt from a chapter on Constitutional law written in, let's say, 2040.

"Antiquated notions of property rights began to yield to broader conceptions of justice and the public good in the wake of the Supreme Court's holding in Kelo v. City of New London (2005). In Kelo, the Court held that public use was not merely use by the public. Encompassed within the public use doctrine was a more expansive "public purpose."  Kelo threw open the floodgates to the concept of public welfare as defined by Justice Douglas decades earlier in  Berman v. Parker (1953): "the public welfare is broad and inclusive ... The values it represents are spiritual as well as physical, aesthetic as well as monetary."

"In the years following Kelo, takings were justified to reduce exclusionary zoning, Shmark v. Country Living, (2009)("the public welfare is undermined when a community can require building lots larger than necessary to support a basic home"); to promote energy development, Zapper v. Wyoming, (2010)("the demand for a domestic energy supply is acute, and the public welfare well served by exploitation of domestic energy reserves"); to promote social and economic equality, Fiori v. Estate of Donald Trump, (2015)("two Americas cannot coexist and yet remain in spiritual harmony")

"Indeed, Kelo's ramifications extended far beyond the takings clause of the Fifth Amendment, representing something like the penumbral reasoning of Griswold v. Connecticut in a bygone era's attempt to establish a right to privacy.

"Flirtations with the such antiquated conceptions as natural law, natural right and all the other bugbears of yesteryear must give way to a more solid and enduring commitment to principles of common good. As we noted in Kelo this Court cannot, and will not, stand in opposition to a well conceived and thoughful articulation of the public welfare." Johnson v. Gonzalez (2009)(school prayer consonant with our history and spiritual values, thus justifying their place in our law and trumping any concerns about establishment of religion). Johnson's conception of public welfare led the Court to uphold the amendment to the Constitution banning gay marriage, Elderton v. Romney (2012)( the public welfare demands recognition of ancient and obvious truths: marriage is between a man and woman and is for the very purpose of procreation). The Court was unwilling, however, to extend Elderton's reasoning beyond the prohibition of gay marriage. "Utah's tax on married couples who choose not to bear children finds no support in the general welfare; marriage may be for the purpose of rearing children, but to penalize a couple for choosing not to procreate is inconsistent with the general welfare." Incanasio v. Fuller (2015).

"The impact of Kelo was perhaps best summarized by Professor Cernovich, dean of the Pepperdine Law School. `By abandoning any concern for the historic purposes of the Constitutional amendments and the philosophic concerns mooring those amendments, Kelo announced a brave new era in American constitutional law: So long as lawmakers can articulate a vision of the public welfare to justify a course of conduct, nothing is forbidden to local government by the federal constitution.'"

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