Kelo, the Common Good, and the Rule of Law

Rob reports on the Supreme Court's latest revision of the Constitution, Kelo v. New London, in which the Justices ruled (in Rob's words) "that local governments may seize private property for private development as long as the development is in furtherance of a public purpose."  (Here are the opinions).  After noting that the majority (which supported the seizure) offers a "stirring invocation of the common good by the majority, putting down individuals' attempts to sabotage the limited collective action needed to promote human flourishing", while the dissent provides a "stirring invocation of civil rights acting as a needed bulwark against the encroachments of collective power -- a position seemingly buttressed by subsidiarity", Rob asks, "from the perspective of Catholic legal theory, who's right"?

Before turning to that question, I cannot help insisting that, from the "perspective" of constitutional law, the majority has effectively read out of the Constitution a limitation on coercive government action -- i.e., that "takings" of private property" be for "public use" -- that the founders, to say the least, regarded as central to a regime of ordered liberty.

I would also submit that the Court's failure to take more seriously the constraints that constitutionalism places even on well-meaning government action should also be objectionable from a "Catholic legal theory" perspective, because that perspective includes a commitment to the rule of law.  A regime in which the government may take the rightful property of A, and give it to B, simply because (in the government's view) the local economy would be better served by B's use than A's is, in my judgment, one that trafficks more in arbitrary power and cronyism than the rule of law, ordered liberty, human dignity, or the common good, properly understood.

The "common good", after all, is not  -- in Catholic Social Thought -- merely the "greatest good for the greatest number", or "the good of the state", or even the "good of the community."  In Gaudium et spes, we are told that the common good is well understood as "the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."  What's more, Gaudium et spes and the Catechism of the Catholic Church proclaim that:

First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."

So, it strikes me that the regime approved in Kelo -- i.e., one in which one's ability to use and enjoy rightfully owned property is subject to the government's continuing belief that some other person's use would not be more beneficial, economically -- is difficult to square with "respect for the person as such."  (To be clear:  I am not endorsing an absolutist approach to property rights -- the Constitution permits, as would I, "takings" of private property, for "public use", with "just compensation.").   What's more, a rule-of-law / property-rights / public-use regime strikes me as one of the "conditions for the exercise of . . . natural freedoms" in which the "common good resides."

Whatever understanding of the "common good" is doing the work in Justice Stevens's opinion, it is not clear to me that this understanding is the same as the one that pervades the CST tradition.

Rick