Property, "Takings," and Subsidiarity

Our colleague Steve Bainbridge has two excellent posts (here and here) up at his other blog on the Kelo case now pending before the Supreme Court.  The case involves a decision by the City of New London to "take" (that is, to condemn) Susette Kelo's house and give it to "the New London Development Corporation (NLDC), a private non-profit body", for some unspecified urban-renewal project.  The Fifth Amendment to the United States Constitution, though, provides that private property may only be taken for "public use."  As Steve notes:

The Supreme Court has held that private property can be seized via eminent domain as part of an urban renewal project when the property is blighted, a loophole that local authorities have greatly abused to seize private property. Yet, in this case, the government doesn't even bother trying to hide behind that fig leaf. They assert baldly the power to seize private homes because they think some other user can put them to a higher tax generating use. Except, in this case, they don't even know what the land will be used to do!

It strikes me that this case, and this issue, are connected to our project here at MOJ in at least two interesting ways.  First, consider this statement (quoted by Bainbridge) of Russell Kirk:

[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth.

Now, the Catholic Social Thought tradition -- from Leo to John Paul II -- has been careful to avoid excessively individualist or libertarian understandings of the right to private property.  At the same time, it has certainly and consistently embraced the idea that freedom and property-rights are linked, and also the idea the the widespread ownership of property -- coupled with reasonable regulations directed toward the common good -- is more likely than collectivization to yield a just and stable society.  (Consider, for example, the Distributism movement.)

A second point sounds, I think, in "subsidiarity."  "Private property" itself -- like labor unions, voluntary associations, local governments, etc. -- is a kind of "mediating institution," providing both a buffer and a bridge between the state and the family.  (If I remember correctly, Professor George Garvey once gave a lecture in which he developed this point).  Thus, we ought to be concerned when governments appear to be abusing their eminent-domain power -- a power that should, for both constitutional and moral reasons, be directed toward the common good -- and "taking" private property either for their own ends, or for the ends of other, privileged, private parties.

Rick