In response to questions by Republican Senator Charles Grassley on July 1, 2010, Supreme Court nominee Elena Kagan discussed property rights and the Court’s Kelo decision. The following are some excerpts of her testimony:
GRASSLEY: Do you believe that the Supreme Court correctly decided the Kelo case or do you believe that the Supreme Court improperly undermined constitutionally protected private property rights?
KAGAN: Senator Grassley, it was obviously a very controversial decision that has inspired a great deal of action in the state legislatures. Of course, what what the court in Kelo did was to say that the question of public use was not necessarily use by the public, but instead was use for a public purpose. And the court said that in the context of a taking of property that was done pursuant to a broad-scale urban development plan. So I think it remains an open question whether that public purpose test would apply in any other context without such a broad– scale urban development plan . . . .
[W]hat states have done in the wake of that decision, in a very striking manner, I think, is to say, “Thanks, but no thanks, you know. We don’t want that power. We don’t want to be — we don’t want to do this. We think doing this, taking property from one person to give it to another person, even in the context of a broad redevelopment plan, is not appropriate public policy.”
And so a number of states . . . have passed these kinds of anti-Kelo legislation, which makes sure that the question never arises because the state government doesn’t try to affect such a taking in the first instance.
GRASSLEY: Can you think of any areas where, in your opinion, the Supreme Court has failed to provide adequate protection of constitutional property rights? And if you can think of any, then I’d like to know examples — or an example.
KAGAN: Well, you know, I’ve tried very hard, Senator Grassley, not to suggest where I see deficiencies with — in — in — in the court’s handling of cases. So I think, you know, I think I won’t answer that question with that degree of specificity.
GRASSLEY: The president who appointed you, in “Audacity For Hope,” his book, said our Constitution places the ownership of private property at the very heart of our system of liberty. Do you agree with that statement?
KAGAN: Well, I do think that property rights are a foundation stone of liberty, that the two are intimately connected to each other in our society and in our history.