Some commenters on my post about Barack Obama's apparent silence about Kelo v. City of New London fail to understand why his position on the case matters. After all, they say, politicians don't have to take positions on every US Supreme Court case, do they? The problem with this reasoning is that Kelo wasn't just any case. It drew a broader political backlash (opposed by over 80% of the public) and a bigger legislative response (43 states and the federal government enacted reform legislation) than any other Supreme Court decision in decades, if not in the entire history of the Court. As I noted in the previous post, numerous politicians - including many of Obama's fellow liberal Democrats, and many African-American leaders - took positions on Kelo (mostly against it). Obama's general election opponent John McCain also came out against Kelo.

Thus, it is not unreasonable to expect Obama to have a position on Kelo. That is especially true when we remember that Obama is a former constitutional law professor and an expert on the history of race and the law. As he likely knows (or at least should know, given his academic specialty), "economic development" takings of the kind Kelo upheld have often been used against the minority poor, a point emphasized by the NAACP among others.

Doctrinally, it is true, Kelo was consistent with previous Supreme Court public use precedents, such as Berman v. Parker and Hawaii Housing Authority. Far from trying to hide this fact, as a few of my critics allege, I have noted it in several articles (e.g. here and here). However, those earlier precedents themselves represented major departures from constitutional text and history, and were particularly extreme manifestations of the post-New Deal tendency to defer to the government on virtually all "economic" matters (a point well summarized in this article on Kelo by Vanderbilt lawprof Jame Ely, a leading historian of constitutional property rights). Kelo represented a major opportunity to rethink these aberrational precedents, at least to the extent of cutting back on their more sweeping assertions of virtually unlimited deference to the government. Essentially, Berman, Midkiff, and Kelo interpreted the term "public use" in the Fifth Amendment to mean "any potential benefit to the public, even if there is no proof that the benefit will actually occur." Eleven state supreme courts have banned economic development condemnations under state constitutional public use provisions worded very similarly to the federal one. Thus, unless you are a believer in very stringent adherence to precedent in constitutional cases regardless of the quality of that precedent's reasoning or the practical impact of keeping it, Kelo cannot be regarded as a typical case whose outcome was predetermined by indisputable past decisions.

Obama's apparent silence on Kelo is therefore telling. If he simply didn't consider the case important enough to take a position on, that suggests that he assigns a very low priority to property rights issues generally. If so, he is unlikely to either appoint pro-property rights judges or support property rights in the political process, as other of his statements suggest he might be inclined to do. If he kept silent because actually agrees with Kelo but didn't want to say so out of fear of offending public opinion, that is even worse news for property rights. Because Kelo licenses virtually any condemnation undertaken for almost any reason, it's logically very hard to endorse this decision without also opposing constitutional property rights across the board. And in fact four of the five justices who voted with the Kelo majority have consistently opposed property rights in virtually every relevant case heard by the Court over the last twenty years (a point I discuss in this article).

I'm not saying that Kelo and related property rights issues should be one Obama's highest priorities. However, if he has indeed maintained complete silence about Kelo, it does have important implications for his broader position on property rights.

UPDATE: To make things absolutely clear, I am not claiming that Obama should be expected to have a position on Kelo because he is black, and economic development takings disproportionately hurt minorities. I am claiming that his being a former professor of constitutional law specializing in racial issues is one of several reasons one could legitimately expect him to have expressed a view on the case. That would be no less true if he were a white lawprof specializing in the same subjects.