Demagogue

One of the big projects of the libertarian and business strands of contemporary conservatism has been to induce courts to take a more aggressive approach to "takings." The Fifth Amendment (yes, the same one where we get the right to remain silent) says that private property shall not be taken for public purposes without just compensation. This is pretty straightforward when the government knocks down your house to build a freeway: it has to pay you the market value of your property. It gets much more complicated when the government doesn't physically take away all of your property but instead restricts what you can do with it; it also gets more complicated when the government isn't building roads but rather devoting your (former) property to a purpose that is arguably for the benefit not of the public but of some other private interest (say, to put up a baseball stadium for the Texas Rangers).

It's in these two kinds of situations that some conservatives have pressed for a more activist judiciary: they want courts to award compensation more often for "regulatory takings," i.e., laws that reduce the value of property without physicially taking it; and they want courts to ban outright the taking of property when the courts don't think it's being done for a public purpose, rather than letting the other branches of government decide what purposes are legitimate.

One of the better publicized cases on the Supreme Court's docket this Term involves the second issue. A Connecticut city wants to create an industrial park of some sort (I'm fuzzy on the details of the case), and a person whose house is in the way is arguing that the city can't take her house just because it thinks that the land can be put to more economically productive use by some corporation. This case has created strange bedfellows, with lefty organizations like the NAACP supporting the claimant, along with the usual right-wing suspects.

It's really a fascinating subject and more complicated than it might appear on the surface. Unless you have an absolute belief in property rights--or an absolute aversion to them--coming to a coherent view on the Taking Clause is awfully tricky. For competing views from the left, check out Crooked Timber (for the claimant & endorsed by Atrios) and Nathan Newman here and here (for the city). I think most of us would conclude that New London is doing a bad thing; but that's not the same as wanting the Supreme Court, rather than the elected branches, to decide what is and what is not a "public" use.