Title
Property and Citizenship: What Kelo Leaves Behind
Abstract
What is the relationship between property and citizenship? That is the question I seek to answer within the context of what procedures ought be required before one's home is condemned, and if we allow such taking, then what compensation is justly due. The vehicle for my exploration is Kelo v. City of New London, 125 S. Ct. 2655 (2005).
My position is that theory - an amalgam of communitarianism and utilitarianism on the one hand (by the Kelo majority), and libertarianism on the other - has itself become a trap for our thought, obscuring the way forward. There is a path out of this thicket we have assembled for ourselves, but it is not theoretical in nature; rather, it is pragmatic. Ergo, my prescription, and eventually my argument that we embrace a pragmatic way of understanding, of deliberative democracy: citizenship.
My survey begins by studying the similarities between the economic revitalization challenged in Kelo and that which took place in New York (especially in the postwar era) under the command of Robert Moses. I then discuss the wealth-maximizing utilitarian approach taken by the Connecticut Supreme Court, before turning to the affirmance of that judgment by the United States Supreme Court on (authoritative) communitarian grounds. I next address the libertarian theory advocated by the dissenters in Kelo.
Also, I examine the critique of Kelo recently put forward as a "pragmatic" alternative of empiricism, paying special attention to the potential - positive and negative - of this methodology.
I conclude that each of these theories is inadequate, and that what we really require is a discussion of what property and citizenship are as ideas, rather than the peculiar frozen crystallizations of them presented by the three perspectives I (constructively) critique. I affirmatively argue in favor of citizenship as conferring upon a member of a political community sets of rights, not merely 'of' private property, but 'to' private property. I submit that Kelo was wrongly decided because it relegated citizens of New London to a subordinate status, where a private corporation was able to make decisions exiling certain persons from the New London community.
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